Breaching the Partisan Divide on the Supreme Court

Many think that the U.S. Supreme Court invariably divides into partisan blocs on controversial cases involving immigration, abortion, criminal justice, affirmative action, religion, and social change.  The liberal bloc, appointed by Democratic presidents, consists of Justices Ginsberg, Breyer, Sotomayor, and Kagan.  The conservative bloc, appointed by Republican presidents, includes Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh.  To be sure, this alignment is one that frequently forms.  But not always.  This term, which concluded in early July, it did not in at least four controversial cases.  The explanations for this type of judicially independent behavior in which Justices break rank range from pure intellectual honesty to practicality.

The best example of intellectual honesty is the opinion of Justice Gorsuch, speaking for a majority that included Chief Justice Roberts and the liberal bloc, in Bostock v. Clayton County.  The issue in this case was whether, in the 1964 Civil Rights Act, Congress’s ban on discrimination “because of sex” applied to discrimination based on sexual orientation and transgender status.  The cases involved employers who had fired employees at least in part because of their LGBT preferences.   The Trump administration supported the employers, not because it approved of that sort of discrimination, but because it believed that Congress in 1964 had not intended the Act to extend so far as to protect workers based on sexual orientation and transgender status. The Trump administration argued that the remedy was for Congress, rather than the Court, to rewrite or amend the statute (which it had subsequently failed to do many times).  Justice Gorsuch, appointed by President Trump, disagreed.  He relied on his belief in textualism – the idea that Congress expresses its intent through the words that it uses in the statute, rather than through legislative history.  Here is his opinion as to why discrimination based on sexual orientation is actually discrimination “because of sex”:

“Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”

Justice Alito, joined by Justice Thomas, filed a sharp dissent.  He called Justice Gorsuch’s opinion “legislation.” He then labeled the majority’s decision a “pirate ship”, in that “it sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia [another textualist] excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”  Justice Kavanaugh, another President Trump appointee, filed a separate dissent.

It undoubtedly took some strong convictions for Justice Gorsuch to have disagreed with the administration and his conservative colleagues and to have written a majority opinion supporting LGBT employment rights.  There is no better explanation than his intellectual honesty in applying his theory of textualism in an even-handed, objective manner.

A second controversial case involving a somewhat atypical lineup of the Justices was Department of Homeland Security v. Regents of the University of California.  This case involved the fate of DACA, the Obama-era program that suspended immigration enforcement actions against children brought into the country illegally by their parents.   The main issue was whether the Secretary of Homeland Security had written a sufficient explanation of the administration’s decision to end the program.  This time Chief Justice Roberts, an appointee of President Bush and a frequent supporter of the administration’s immigration policy, authored a 5-4 opinion in which the liberal bloc joined to reject the administration’s position.  Given that there were no major jurisprudential principles (such as textualism) at stake, the Chief Justice may have been doing what he promised to do in his nomination hearings – call balls and strikes – in reaching an opinion at odds with the conservative bloc. There are critics who, based on the Chief Justice’s votes in favor of preserving the Affordable Care Act (or Obamacare), claim that the Chief Justice was acting in a political manner to preserve DACA until after the Presidential election.  Indeed, Justice Thomas, in dissent, wrote that “[t]oday’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”  For whatever reason, it appears that the Chief Justice has begun to assume the role of former Justices O’Connor or Kennedy as a swing vote on a Court sometimes otherwise divided 4-4.

Chief Justice Roberts again supported the liberal bloc in June Medical Services v. Russo, a case challenging a Louisiana statute that prevented doctors from performing abortions unless they had admitting privileges to a hospital within thirty miles of the abortion clinic.  The practical effect of the statute was to reduce the number of doctors who could perform abortions at clinics to one or two in the entire state.  In his concurring opinion, the Chief Justice wrote that he felt bound by the doctrine of “stare decisis” to follow a 2013 Supreme Court case in which the Court had struck down a nearly identical Texas statute.  The stare decisis rule ordinarily requires the Court to adhere to its precedent.  Chief Justice Roberts went so far as to say that, although he considered the prior Texas decision to be wrongly decided, stare decisis required him to follow it.  He quoted Alexander Hamilton – very quotable these days – from the Federalist papers in stating that adherence to precedent is necessary to “avoid an arbitrary discretion in the courts.” Here again, an honest belief in a judicial principle led to a result that may have been contrary to a Justice’s personal policy views.

Perhaps the most interesting case that broke the traditional mold was Ramos v. Louisiana.  The main issue was whether the sixth amendment’s implicit guarantee of a unanimous jury verdict in federal criminal cases applied to state court trials.  The majority (Justices Gorsuch and Justice Kavanaugh joined by liberal bloc Justices Ginsburg, Breyer, Sotomayor) held that the right did apply.  Justice Thomas concurred on separate grounds. The dissent consisted of the Chief Justice, Justice Alito, and Justice Kagan.  What would produce such an unusual crossover?  It turns out that the main issue turned on whether the Court should overrule a prior decision that had held that the federal unanimous jury right did not apply to the states.  So the question again became one of whether to apply stare decisis.  And discussion of stare decisis in today’s political culture inevitably leads to the topic of whether the Court should reconsider and overrule Roe v. Wade, the abortion decision.  Thus, to some extent, the Justices used the Ramos case to shadowbox over abortion.  In joining the dissent from the decision to overrule the prior Supreme Court decision, Justice Kagan, an Obama appointee and faithful observer of stare decisis, staked out her position that the Court should not overrule its prior decisions unless for the most compelling reasons.

There were several other decisions, involving religious freedom and subpoenas for the President’s financial records in which some liberal and conservative Justices joined to form majorities. (See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania; Our Lady of Guadalupe School v. Morrissey-Berru; Trump v. Vance; Trump v. Mazars USA, LLP.)  Whether based on pure intellectual honesty or more practical reasons, these breaks in the partisan divide that normally seem to prevail at the Court in controversial cases are, at a minimum, refreshing and, at a maximum, inspiring.  The Justices’ independence proves that a President cannot expect to appoint a puppet to the Supreme Court.  And when a Justice, based on intellectual honesty, puts aside his or her political philosophy and reaches a result contrary to traditional expectations or popular trends, he or she demonstrates the essential ingredient of an independent judiciary.   To achieve the proper balance between government or private authority and individual freedoms, we count on judges to have the courage to do the intellectually right thing. This term, we were not disappointed.

If you enjoyed this article, you can read more bipartisan debates, op-eds, and interviews here.

Carl J. Schuman

Superior Court Judge, Connecticut; Former Assistant United States Attorney

Carl Schuman has served as a Superior Court judge in Connecticut since 1998. He is a former Assistant United States Attorney and currently is on the adjunct faculty of Quinnipiac University School of Law. He is a regular contributor to Divided We Fall.  His views do not necessarily reflect the views of the Connecticut Judicial Branch.