Conservative Justices Warn Kavanaugh and Barrett Lack 'Fortitude' | Opinion

For the first time in a generation, there are six conservative justices on the Supreme Court. In time, this sextet will incrementally push the Court to the right. Yet, three of them are already sounding an alarm. Twice this term, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch warned that Justices Brett Kavanaugh and Amy Coney Barrett lack backbone.

In an excessive force case, the conservative trio wrote that the two newest Justices were "unwilling to...bear[] the criticism that" denying the prisoner's appeal "would inevitably elicit." And in a religious liberty case, the Thomas-3 charged that Kavanaugh and Barrett lacked the "fortitude" to overrule a controversial precedent. The conservatives implied a similar fissure in several other cases.

It is fairly common for justices to criticize their colleagues' legal judgments. But it is rare for justices to claim that their colleagues are motivated by cowardice. The putative 6-3 conservative majority is, in fact, far from monolithic. At present, we have a 3-3-3 Court. There are three progressives, three conservatives and three members in the middle. Only time will tell whether Justices Kavanaugh and Barrett will sidle up to Chief Justice John Roberts' P.R.-based jurisprudence, or whether they will stand on their constitutional principles.

Perhaps the most unsatisfying case this term was Fulton v. City of Philadelphia. Catholic Social Services refused to certify unmarried couples and same-sex couples as prospective foster families for purposes of adoption. In response, Philadelphia refused to contract with Catholic Social Services. The court of appeals upheld this decision based on Employment Division v. Smith (1990). This precedent, authored by the late Justice Antonin Scalia, held that the government can generally burden religion so long as the law is applied neutrally. And, the lower courts held, Philadelphia did not target Catholic Social Services.

Over the past three decades, a mountain of scholarship has shown that Justice Scalia erred, and Smith was wrong. Indeed, Catholic Social Services expressly called on the Court to overrule Smith. Thomas, Alito and Gorsuch heeded that call. However, Barrett and Kavanaugh refused to overrule Smith. They doubted whether Smith was correct and expressed an openness to reversing the case in the future, but did not think this case presented the right opportunity.

Gorsuch was not pleased with this half-measure. He wrote a pointed concurrence, joined by his two conservative colleagues. Gorsuch charged that the majority "dodg[ed] the question today." In a not-so-subtle warning to the other two Trump appointees, Gorsuch wrote that "these cases will keep coming until the Court musters the fortitude to supply an answer." Gorsuch thus called out Kavanaugh and Barrett for lacking "fortitude" in the present moment. This personal attack no doubt reflects simmering tensions within the Court, and those tensions have now spilled into public view.

The 3-3-3 fracture emerged in several other religious liberty cases this term. In South Bay United Penetcostal Church v. Newsom, the six right-of-center justices ruled that California could not prohibit indoor worship during the pandemic. But the majority split about whether the state could prohibit singing in houses of worship. Thomas and Gorsuch would have allowed singing. Alito would have given the state 30 days to prove that California's ban would actually curb the spread of COVID-19. Barrett wrote a concurrence, which Kavanaugh joined, finding that the churches did not meet their burden and that the singing ban could remain. Barrett thus used her first separate writing on the Court to rule against people of faith.

After the Court's term concluded last week, Kavanaugh and Barrett once again closed the door on a long-standing religious liberty battle. Barronelle Stutzman is a florist in Washington State. In 2013, she declined to make an arrangement for a same-sex union. After nearly eight years of litigation, the Washington Supreme Court ruled against Stutzman.

But on July 2, the U.S. Supreme Court declined to review that ruling. Thomas, Alito and Gorsuch would have taken it up, but on the Supreme Court it takes four votes to grant a petition for a writ of certiorari and hear a case. Because the three conservatives dissented from the denial of certiorari, we can conclude that both Kavanaugh and Barrett refused Stutzman's appeal. Once again, the Thomas-3 were willing to publicly shame the two newest Trump appointees.

The U.S. Supreme Court is seen in
The U.S. Supreme Court is seen in Washington, D.C. on July 1, 2021. MANDEL NGAN/AFP via Getty Images

Alito saved his sharpest criticism of his new colleagues for Lombardo v. City of St. Louis. In this case, police officers held down a prisoner by placing force on his back. Soon, he stopped breathing and died.

The parallels to the George Floyd case should be obvious. The lower court rejected the excessive force claim. The case lingered on the Supreme Court's docket for nearly 10 months—a sign that some sort of negotiations were afoot. Finally, in June 2021, the Court took an unusual action. The justices did not reject the case, as they did to Barronelle Stutzman. Nor did the Court agree to hear the case. Instead, the justices asked the lower court to reconsider whether it followed the correct legal standard.

Alito, joined by Thomas and Gorsuch, dissented. Based on the process of elimination, Kavanaugh and Barrett agreed with the Court's strange punt. Alito savaged his colleagues. He wrote that the Court was "unwilling to...bear[] the criticism that" denying the appeal "would inevitably elicit." In all likelihood, this punt merely delayed the government's inevitable victory. But, in the meantime, the Supreme Court gets credit for keeping the case alive. Once again, the Court aired its dirty laundry in public. The three conservatives alleged that Kavanaugh and Barrett were afraid of public criticism, and instead chose to virtue-signal.

The Court's right-of-center bloc also fractured over election law. No, not the Kraken case, or Texas' ill-fated suit. Instead, Republican Party of Pennsylvania v. Degraffenreid presented a critical question: Can the courts modify the rules governing elections?

In February 2021, well after President Joe Biden's inauguration, the Court declined to review the appeal. Once again, the three conservatives dissented. Based on the process of elimination, Kavanaugh and Barrett refused to take up the case. In dissent, Thomas wrote that the Court had "an ideal opportunity" to resolve this issue "before the next election cycle." The majority's "refusal to do so" was thus "inexplicable," "befuddling" and "baffling." Thomas added, "one wonders what this Court waits for." And by "Court," he no doubt meant Kavanaugh and Barrett: If one of them had agreed, the Court would have heard the case.

Kavanaugh's silence in Degraffenreid is especially "befuddling." Prior to last November's election, he ruled that courts could not alter election rules. Perhaps the tumultuous aftermath of the election, including the events of January 6, gave him pause. The Wall Street Journal wondered, "Where did Justice Brett Kavanaugh wander off to, since he was the fourth vote in October?" And Linda Greenhouse of The New York Times observed that Barrett might have declined to grant review because "the optics of voting to hear a last-ditch Trump appeal would be awkward, to say the least."

We cannot be certain why the two newest justices punted in Degraffenreid. But pundits from all across the political spectrum charged that the Trump appointees voted based on non-jurisprudential concerns about optics. And Thomas, Alito and Gorsuch were "baffled," just like the rest of us.

Consider one final case from before Barrett's tenure on the Court. Gee v. Planned Parenthood, decided last summer, considered whether the abortion provider could challenge Louisiana's refusal to fund the organization. In December 2018—two months after Kavanaugh was confirmed—the Court declined to hear the case, leaving in place a victory for Planned Parenthood.

Thomas dissented, joined by—you guessed it—Alito and Gorsuch. This case presented a fairly technical dispute about Medicaid law. But, because it involved abortion, all the usual rules necessarily went out the window. Thomas warned that "some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty." He quoted Alexander Hamilton in Federalist No. 78: "We are not 'to consult popularity,' but instead to rely on 'nothing...but the Constitution and the laws.'" His colleagues, including Kavanaugh, regrettably "consult[ed] popularity."

Perhaps my criticisms seem picayune. Without question, this Court leans conservative. But we should take seriously these warnings from Thomas, Alito and Gorsuch. They are sounding an alarm about Kavanaugh and Barrett. Both of these jurists, who are still very early in their decades-long careers, are already raising serious red flags.

We can always agree to disagree about legal arguments. Indeed, I vehemently disagree with Gorsuch's strained argument that the Civil Rights Act of 1964 prohibits LGBT discrimination. But I will always commend Gorsuch's willingness to take a stand unpopular among conservatives. Courage is a muscle that must be exercised; if fortitude is not flexed, it atrophies. Look no further than Chief Justice Roberts, who has withered away to a hollow shell of the jurist he once was. Now, Roberts strives to achieve moderation for the sake of moderation—regardless of any actual governing legal principles. I pray that Justices Kavanaugh and Barrett, both of whom I deeply respect, resist that siren song. They should instead follow Hamilton's lead and rely on "nothing...but the Constitution and the laws."

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the co-author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.

The views expressed in this article are the writer's own.