WASHINGTON − Though the Supreme Court’s conservative supermajority continues to push the law in a rightward direction, the six justices appointed by Republican presidents are not always rowing in sync.
In the term that ended in June, the conservatives splintered in more than a dozen cases in which at least two joined with all three liberals to form a majority − including in cases important to the conservative legal movement.
It happened when the court upheld the Biden administration’s regulation of untraceable “ghost guns” and turned aside conservative challenges to Obamacare and to an internet subsidy program in cases targeting the power of federal agencies.
And it happened in multiple cases involving death row inmates and other criminal defendants.
“I’ve said this before and I’ll say it again: I think liberals should be thankful to President Trump for appointing more moderate conservatives,” said Josh Blackman, a law professor at South Texas College of Law in Houston and close observer of the high court. “It could be much worse for them.”
Divisions over federal agency decisions
Leah Litman, a law professor at University of Michigan Law School and a court critic, said she’s more focused on the conservative majority’s decisions that she believes have major negative consequences.
Litman, author of “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes,” said it’s harder to gauge the significance of the cases in which the conservatives splintered.
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In the challenge to a federal subsidy program for phone and internet service, for example, the court passed up a chance to further curtail the power of federal agencies.
Three conservatives − Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett – joined with the three liberals in ruling that Congress had not improperly given its taxing authority to the Federal Communications Commission.
But in a concurring opinion, Kavanaugh left the door open to reviving a legal theory, mostly dormant since 1935, that prohibits Congress from delegating legislative power to the executive branch.
“It feels like the justices are treading water because they haven’t yet figured out exactly what they want to do,” Litman said.
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Blackman, however, said he’s surprised the conservatives split over issues about federal agency authority, which was a big area of concern when Trump, during his first term, was selecting his nominees: justices Neil Gorsuch, Barrett and Kavanaugh.
“Gorsuch is saying, `I thought we had a plan here,’” Blackman said. “’I thought we were going to do something here.’”
Gorsuch and the ghost guns
When Gorsuch was in the minority, he was often joined by justices Clarence Thomas and Samuel Alito, the court’s most conservative justices. But not always.
In fact, Gorsuch wrote the 7-2 decision upholding the Biden administration’s regulation of untraceable “ghost guns” that Thomas and Alito opposed.
That was one of the court’s many decisions overturning rulings from the Louisiana-based 5th U.S. Circuit Court of Appeals, a court that is often more conservative than the high court.
The high court’s libertarian
Conservative legal commentator Sarah Isgur said Gorsuch is one of the court’s most interesting judges because of his libertarian streak.
“He’s part of the most conservative wing, but where he breaks, he breaks against the government,” Isgur said at a recent public forum on the court’s term.
Gorsuch was not afraid to stand on his own, including with his solo dissent in a dispute between a taxpayer and the Internal Revenue Service.
Gorsuch said the court’s 8-1 decision endorsed the IRS’ effort to “never having to answer a taxpayer’s complaint that it has made a mistake.”
Criminal cases divided the conservatives
In addition to some of the decisions involving federal agencies, conservatives were not all on the same page on cases involving criminal defendants and others fighting for civil rights.
The most high-profile case involved death row inmate Richard Glossip, who said he did not get a fair trial in a 1997 murder-for-hire case.
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In a rare move for a prosecutor, Oklahoma’s attorney general concluded trial attorneys hid evidence that might have led to Glossip’s acquittal.
Roberts and Kavanaugh joined with the three liberals in ordering a new trial for Glossip.
‘Let’s just fix this’
Daniel Epps, a professor at Washington University School of Law, said the decision looked more like one from the past in which the justices sped over procedural and substantive roadblocks to get at the result that seemed right.
But the case does not signal a radical change in the court’s approach to criminal cases, Epps said at a forum at Texas A&M University School of Law.
Instead, he said, it suggests there are at least a couple of conservative justices willing to say, “OK, let’s just fix this” in cases that get significant attention because someone seems to have gotten a raw deal.
“I think that would’ve happened more often 10 years ago,” he said, “but maybe it’s still going to happen occasionally.”
A `big win’ for prisoner’s rights
In fact, on the same day the American Civil Liberties Union lost its challenge to Tennessee’s ban on gender affirming care for minors, civil rights advocates celebrated the court’s decision in a different case.
Roberts and Gorsuch joined the liberals in siding with a state prisoner in Michigan trying to sue a prison official for sexual abuse, retaliation and destruction of property.
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Cecillia Wang, national legal director for the ACLU, called the decision a “big win for prisoners’ rights.”
And she said it’s similar to another 5-4 decision, one favoring Alabamans trying to sue the state over extreme delays in filing for unemployment benefits. In both cases, the majority found those trying to enforce their rights had been placed in unwinnable Catch−22 situations.
In a term when the conservative majority “really flexed its muscle to devastate civil rights plaintiffs in the marquee cases,” Wang said, a majority still “sided with civil rights plaintiffs, with criminal defendants, in lower-profile cases that were enormously consequential for people’s ability to vindicate their civil rights in the courts.”
This article originally appeared on USA TODAY: Supreme Court decisions that divided the court’s conservatives
