Twice this term, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch warned that Justices Brett Kavanaugh and Amy Coney Barrett lack backbone, attorney Josh Blackman writes at Newsweek.
They’re weak.
In an excessive force case, the three conservative justices 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.
We noticed. They’re cowardly. We finally have a majority but two of them might as well not be there. We really have a 3-3-3 court, says Blackman.
“There are three progressives, three conservatives, and three members in the middle.”
There is a real danger they will become like Justice Roberts, not standing on constitutional principles. We wanted originalists but they appear to be more like Roberts.
Mr. Blackman provided examples from the court dissents in several cases.
THE CASES
The Fulton v. City of Philadelphia bothered Mr. Blackman, a constitutional law professor at South Texas Law.
“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 told them they “dodged the question today” and 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.
They also split over another case of singing in church.
Then there was the horrendous case of Baronelle Stutzman, a florist who could not service a gay wedding due to her religion. They abandoned Ms. Stutzman.
Early on, Barrett also refused to weigh in on forced funding of Planned Parenthood.
Alito was very critical of the two in 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 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.”
The three conservatives alleged that Kavanaugh and Barrett were afraid of public criticism, and instead chose to virtue-signal.
They fractured over the Republican Party of Pennsylvania v. Degraffenreid that presented a critical question: Can the courts modify the rules governing elections?
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.
There is more you can read at Newsweek but it looks like we aren’t imagining that Kavanaugh and Barrett are complete duds with a liberal, not originalist, streak.
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