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...
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.
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