The Supreme Court’s liberal wing was outgunned before Ruth Bader Ginsburg’s death. It’s about to get worse.
The court’s four liberals managed to eke out some recent wins when conservative justices occasionally crossed over to build majorities. That becomes much tougher with a 6-3 majority, which requires winning over two conservatives and makes the prospects all the dimmer of shielding Obamacare in a case scheduled for argument early this term or saving Roe v. Wade from further erosion in future cases.
“With now essentially a 6-3 minority, even if they at times get Roberts or even a Kavanaugh or a Gorsuch—probably not both at the same time—to side with them, there will be few victories,” said Deborah Pearlstein, a professor at Cardozo Law who clerked for the late Justice John Paul Stevens, appointed by Republican Gerald Ford before going on to lead the liberal wing until his retirement in 2010.
It may take a term or two to see how the trio of liberals adapt: Will Justice Elena Kagan’s previous attempts at moderation prove fruitful? How does Justice Stephen Breyer, at 82, act as the new senior justice in the minority? Does Justice Sonia Sotomayor continue to dissent alone? Will the trio band closer together?
How much influence they have will ultimately depend on their ability to convince conservatives such as Chief Justice John Roberts and President Donald Trump’s first two nominees, Neil Gorsuch and Brett Kavanaugh, to join them in the center. The two conservative stalwarts Clarence Thomas and Samuel Alito are least likely to cross over. Trump’s latest nominee, Amy Coney Barrett, would be the newest addition.
“If the three liberal justices find that there are justices among their colleagues, two justices, who not only seem willing to listen, but sometimes seem willing to craft opinions that are going beyond the 5-4 or 6-3 split, then I think that they will have reason to try for that,” said Andrew Crespo, a Harvard Law School professor who clerked for both Breyer and Kagan.
If not, he said, “then I think you could see a 6-3 court with the 6 and the 3 moving ever farther apart from each other, if the 3 decide there is just no one who ever wants to try to steer clear of some of those most contentious battles to come.”
Two Votes Needed
Even under longstanding Republican majorities, the liberal wing had continued to retain a surprising ability to forge winning coalitions.
Heading into the most recent term, a majority of 5-4 decisions during Roberts’ tenure involved something other than five Republican appointees voting one way and the four named by Democrats going the other way. Roberts or Gorsuch have recently voted with Ginsburg, Kagan, Breyer, and Sotomayor in high-profile cases. Roberts voted with them on ones involving DACA and abortion, Gorsuch has broken ties their way in criminal disputes, and, in the perhaps not-to-be-repeated feat, Roberts and Gorsuch lined up with the four in the landmark 6-3 ruling upholding discrimination protections for LGBTQ workers.
“We’re not starting from neutral ground,” said Easha Anand, who clerked for Sotomayor and is now Supreme Court and appellate counsel for the MacArthur Justice Center. “Justice (Anthony) Kennedy was a conservative. When the Chief Justice took over the center of the court, he was even more conservative.”
Even when Roberts provided a fifth vote, as in the June Medical abortion case this past term, the chief justice used that opportunity to pare back abortion rights and essentially erase a prior ruling, Anand said.
A court shifting even further to the right could put even those compromise rulings out of reach. The minority now needs to attract two votes from the Republican appointees in every case to prevail—and that’s assuming all three stick together.
Of course, not all case outcomes fall along partisan lines. But when it comes to reproductive rights, the power of the administrative state, and the rights of corporations, “there is likely to be very little they can do,” Pearlstein said.
The argument over the Affordable Care Act, set for the week after the presidential election, could provide early hints at the new court’s direction, if, as Republicans hope, the new justice is installed by then. As the election nears, any voting cases that come to the high court on an emergency basis will also test it in the eyes of a public mindful of Bush v. Gore and Trump’s comments that a ninth justice is needed to settle voting disputes.
The liberal justice best positioned to help win over conservatives could be Kagan. She’s “known for really wonderful moderating negotiating skills,” Pearlstein said.
Within the liberal wing, Kagan and Breyer had formed in some cases a more moderate sub-wing, with Sotomayor and Ginsburg occupying the court’s left.
Sotomayor “is used to dissenting solo,” said her former clerk, Anand. “She does it a lot, particularly in civil rights cases. I imagine she’s facing down the prospect of dissenting solo even more than she already does.”
Having those two pairs of justices within the liberal wing meant that they were able to do two things at once, Crespo said. “Two of them were able to essentially set out the liberal flank, the uncompromising liberal position, the position that Ginsburg and Sotomayor often took. And then you saw that Breyer and Kagan oftentimes seemed to be making sure to create an environment that the chief justice could feel comfortable joining.”
A sense of “institutional stewardship” among Roberts or other conservatives could result in the creation of a new “middle wing of the court,” Crespo said.
As its senior member, Ginsburg would assign who writes the opinions for her wing when the chief wasn’t with them.
“She wielded this authority strategically,” said Allon Kedem, who clerked for who clerked for Kennedy and Kagan and is now a partner at Arnold & Porter. “She often assigned herself to write dissents in cases, such as Shelby County and Hobby Lobby, where her background and expertise gave her words extra authority. For other cases, she shrewdly matched the dissent to the Justice.”
That task now falls to Breyer.
Opinion assignments matter less in dissent, Pearlstein said. Anyone who wants to write one, can.
But if the three Democratic appointees are in the majority “because they have managed to forge some sort of coalition with a couple of the conservative members,” she said, “then their opinion writing choices are certain to be guided by their assessment of who is most likely to help them keep the majority, rather than having one of the five change their minds part way through writing.”