What's behind the conservative rift on the Supreme Court

But where the real disagreements are happening today is along the institutionalist axis, where justices have very different opinions on the role of the Supreme Court. Toward the lower “four corners” end, justices like Gorsuch believe that a case’s outcome should be determined by the law and the facts of that case alone. But for a more institutionalist justice like Kavanaugh, the role of the court itself is an important factor. An institutionalist, for example, may believe the court is charged with leading the judicial branch by issuing opinions that will provide a clear and precise road map to lower courts that can guide their decisions in future cases; that outcomes should be practical and aid rather than hinder the efficient functioning of government; that precedent is important to follow because it affects the court’s credibility with the public; and that changes to the law should be incremental and narrow because “inconstancy and versatility,” as Edmund Burke put it, undermine the integrity of the rule of law itself. To put it perhaps too simply, Gorsuch’s conservative judicial philosophy is unaffected by the ramifications of the outcome of a case; Kavanaugh’s is.

The difference becomes even more clear when you look at the statistics of this term. Gorsuch fully agreed with Justice Clarence Thomas—arguably the most conservative justice on the court and a “four corners” justice too—73 percent of the time. Kavanaugh only fully agreed with Thomas 46 percent of the time—the same percentage that liberal Justice Elena Kagan agreed with Thomas…

As we saw in the Bostock case about sex discrimination, Kavanaugh may actually be to the right of Gorsuch along the conservative axis, but as with the case above, he is significantly above him on the institutionalist axis. And while we only have one term to affix Justice Barrett’s position, it’s increasingly clear that she is both quite conservative and often institutionalist.