When Justice Brett Kavanaugh, later joined by Justice Amy Coney Barrett, was first confirmed to the Supreme Court, there was widespread speculation across the ideological spectrum of how they had cemented a 6–3 “conservative” supermajority of Republican-appointed jurists on the high court.
That hasn’t exactly been the case in reality, however, as the actual “6–3 supermajority” controlling the Supreme Court right now appears to be the odd alliance of Kavanaugh, Barrett, and Chief Justice John Roberts alongside the three liberal justices, leftist media outlet Slate reports.
The purported alliance seems to have nothing to do with ideology and instead looks to be a patchwork of different reasons that were nonetheless welcomed by those who had feared the prospects of Kavanaugh and Barrett routinely siding with the more consistently conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas.
The new alliance
As evidence of this proposition, Slate looked to the oral arguments Monday with regard to S.B.8, the strict anti-abortion law in Texas, and reports of how Barrett, Kavanaugh, and Roberts had seemed to side with the liberal justices in favor of abortion providers and against the Texas law.
Of course, Slate duly noted that the apparent alliance had nothing to do with them actually supporting abortion, but was instead driven by Roberts being an institutionalist concerned with the integrity and status quo of the judicial system — which is challenged by the Texas law — and by Kavanaugh and Barrett being concerned that the unique enforcement mechanism of the Texas law could be aimed at other constitutional rights, such as gun rights, in other states.
But this also isn’t the first and only example of those three siding with the liberals instead of the conservatives, as they just did the same in late October in rejecting an appeal from Maine healthcare workers seeking exemptions from that state’s strict COVID-19 vaccine mandates — a case in which Barrett herself authored an opinion supporting the rejection.
Who is really in control?
To be sure, Slate was under no illusions that Barrett or Kavanaugh or even Roberts had undergone any sort of ideological shift and now viewed themselves as liberals, and the outlet repeatedly reiterated that the aforementioned alliance with the liberal wing was of a temporary and transactional nature to suit their own individual desires.
Indeed, for any of the examples of any of those three joining the liberal wing for a decision, there are just as many examples, if not more, where they were in alignment with the conservative wing for a given ruling.
All of that plays into a somewhat related question probed recently by The Guardian about how is actually in charge at the Supreme Court, since it doesn’t appear to be Roberts above and beyond his title of chief justice.
That article noted how for many years Roberts seemed to relish the fact that he held the ideological middle and could be the deciding vote on a wide variety of cases. But with the death of Justice Ruth Bader Ginsburg and the retirement of Justice Anthony Kennedy, replaced by Barrett and Kavanaugh, respectively, the ideological alignment has shifted and Roberts is no longer in the center.
Instead, that deciding middle spot increasingly seems to be occupied by Kavanaugh, with Justices Thomas and Stephen Breyer assuming control of the right and left wings, respectively, due to seniority.
How all of this plays out in the future is anybody’s guess, and it is quite likely that the trio of Kavanaugh, Barrett, and Roberts will find themselves going back and forth between the two wings depending upon the issue at hand — which undermines all of the leftist fear-mongering over the past two years of a staunchly conservative court plunging America back into the Dark Ages.