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This has been a busy week for the US Supreme Court, with a total of six published decisions on hot-button culture war issues including abortion (a boringly unanimous Article III standing decision, already discussed in its own thread below), gun control, immigration, labor relations, and even a Trump-bashing trademark registration case. Even the sixth case, about boring-old bankruptcy fees, produced an unusual 6-3 split: Jackson wrote the majority opinion, joined by Roberts, Alito, Sotomayor, Kagan, and Kavanaugh. Gorsuch authored an impassioned dissent, joined by Thomas and Barrett.
The trademark case, Vidal v. Elster, is more interesting than it looks at first glance. The question is whether a provision of the Lanham Act (the federal statute governing intellectual property issues), which forbids registration of trademarks featuring the name of a person without that person's consent, is constitutional. All nine justices agree that it is. And yet, instead of a simple unanimous opinion, we get:
"THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court, except as to Part III. ALITO and GORSUCH, JJ., joined that opinion in full; ROBERTS, C. J., and KAVANAUGH, J., joined all but Part III; and BARRETT, J., joined Parts I, II–A, and II–B. KAVANAUGH, J., filed an opinion concurring in part, in which ROBERTS, C. J., joined. BARRETT, J., filed an opinion concurring in part, in which KAGAN, J., joined, in which SOTOMAYOR, J., joined as to Parts I, II, and III–B, and in which JACKSON, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which KAGAN and JACKSON, JJ., joined."
The gun control case, Garland v. Cargill, divides predictably 6-3 along right/left lines. Thomas, writing for the majority, holds that "bump stocks" are not machineguns within the meaning of the National Firearms Act, abrogating a (Trump-era) ATF ruling that sought to ban such devices.
The immigration case, Campos-Chaves v. Garland, is the closest of all, with Alito writing for the 5-4 majority and Gorsuch joining the three liberals in a dissent authored by newcomer Jackson.
The labor case, Starbucks Corp. v. McKinney, was almost unanimous, except for Justice Jackson's solo partial-dissent-but-concurrence-in-the-judgment. It seems to me (I have not attempted to quantify this impression) that Justice Jackson is much more likely than the other liberals to author a solo opinion.
I have only skimmed a few of these cases, so I don't feel equipped to dive deep into the merits of each case, but I always enjoy the Motte's Supreme Court culture-war takes. For my own contribution, I just want to articulate my view of the Justices' voting patterns: I feel like the Court's conservatives disagree with each other a lot more often than the liberals do. It's very common to see conservatives on both sides of an issue, while the liberals overwhelmingly tend to vote as a block. This week is just an example of the general pattern, I think. Many right-leaning court watchers see that as a bad thing, as if the Court's conservatives are wishy-washy and ideologically unreliable. I tend to see it differently; to me, it suggests the conservatives are more even-handed and unbiased, while the liberals are more interested in conformity and towing the party line--undesirable traits in a judge. As I said, though, I haven't attempted to test my hypothesis by quantifying who voted which way, when. Someone has surely done that, and I'd be interested to see their results.
I like your writeup.
Hypothesis for your latter observation: there are more conservative justices, appointed over a longer period. I wouldn't be surprised if they have more competition between viewpoints.
But then, I do tend to take weird splits like Campos-Chaves v. Garland as evidence against partisan capture. I want to believe that Court is better modeled as a club of weirdo turbo-lawyers. They obviously aren't immune to mainstream politics, but they play with a rather different set of incentives.
Among whom Gorsuch prides himself on being the most idiosyncratic weirdo.
I think so too. Textualists are supposed to care about the meaning of the statutory language, without worrying too much about "legislative intent." But Gorsuch, sometimes, takes this principal so far that he seems to enjoy finding a perversely-literal interpretation of a statute which everyone agrees the legislature could not have intended. Bostock is the clearest example IMO: according to Gorsuch, the Civil Rights Act's prohibition of sex discrimination also unambiguously prohibits employers from discriminating against homosexual and transgender employees (of both sexes), despite the fact that (in the words of Judge Posner) "the Congress that enacted [the Act] would not have accepted" that interpretation. In fact, Congress had already considered and rejected a proposed amendment to the Civil Rights Act that would have extended its protection to "sexual orientation and gender identity," and (Alito points out in dissent) "until 2017, every single Court of Appeals to consider the question" rejected Gorsuch's reading of the text. According to Gorsuch, treating men and women equally is not important; the Civil Rights Act apparently requires men and women to be treated exactly the same, to the point that you can't fire a male employee for wearing womens' clothing (it's important to note that Gorsuch's reasoning here would apply to all male employees, regardless of their "gender identity."). So, can an employer take action against a male employee--who identifies as a man--who insists on using the women's bathroom? Wouldn't firing that employee be motivated, in part, by the employee's sex, according to Gorsuch's rule? Yet Gorsuch refuses to engage with this inescapable extension of his reasoning, lamely announcing that those cases "are not before us ... we do not purport to address bathrooms, locker rooms, or anything else of the kind."
So Gorsuch, one of the more reliable conservative votes, has on at least one occasion handed a huge culture war victory to the left because (in my uncharitable opinion) he thought it would be impressive to discover a "counterintuitive" reading of the statute. The reason Congress and all those appellate courts didn't interpret the statute the same way is that they just weren't smart enough to find the "unambiguous" meaning of Title VII, unlike the eagle-eyed textualist Gorsuch. Then he refuses to even consider the obvious import of his holding on nearly-identical culture war issues, like sex-segregated bathrooms and changing rooms, because--again--he's one of those elite compartmentalizing textualists who consider only the issues before them, and who are not swayed by irrelevant appeals to unlitigated issues and public policy concerns.
This turned into more of a rant than I intended, but I do think it supports the argument of some right-wingers that "thoughtful" conservative Justices can be a liability, since it only takes a couple of them to side with the defect-bot liberals and inflict huge damage on the right.
One part that I'd add is that we don't really have any such examples of a Gorsuch opinion that's bizarre textual literalism that benefits the right or part of its allegiances.
Maybe he'll prove me wrong -- Williams v. Kincaid in the 4th Circuit is kinda an anti-matter Bostock, where there's absolutely no question that the explicit ADA statute excludes a wide array of sexuality and gender-related stuff, and lower federal courts have decided that Congress must have really 'intended' for this exception to not apply for a wide array of sexuality and gender-related stuff.
Wouldn't put money on it, though.
Perfect example of the use of institutional capture. Congress excludes "gender identity disorders". The (captured) APA drops "gender identity disorders" and replaces them with "gender dysphoria", and the Fourth Circuit says "Oh, that's totes different".
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