Having a 6-3 majority on SCOTUS doesn't mean conservatives are all love and kisses and speak with one voice.
The key fault line in the Supreme Court that Donald Trump built is not the ideological clash between right and left — it’s the increasingly acrimonious conflict within the court’s now-dominant conservative wing.
Those rifts burst wide open on Thursday with two of the highest-profile decisions of the court’s current term. In both the big cases — involving Obamacare and a Catholic group refusing to vet same-sex couples as foster parents in Philadelphia — conservative justices unleashed sharp attacks that seemed aimed at their fellow GOP appointees for failing to grapple with the core issues the cases presented.
Some liberal legal commentators noted that the most carefully dissected rhetorical sparring is now taking place among members of the new six-justice conservative majority, with the three remaining liberal justices often left as mere spectators.
“We’re arguing about the battles among the conservatives and when that coalition breaks and where it goes,” lamented Harvard Law School lecturer Nancy Gertner, a former federal judge. “It’s a dramatic difference from only two or three years ago.”
Leading the charge from the right in both cases Thursday was Justice Samuel Alito, who penned caustic opinions taking his colleagues to task for issuing narrow rulings that seemed to him to be aimed at defusing political tensions rather than interpreting the law. “After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I,” Alito wrote in the foster-care case, notwithstanding the Catholic charity’s unanimous victory.
In the Obamacare dispute, Alito sarcastically accused the majority of repeatedly indulging in flights of legal sophistry to avoid the politically unpalatable step of striking down the landmark health care law.
"No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats,” Alito wrote. "A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent.”
While Alito observed the court’s traditional decorum by railing at “the majority,” there was little doubt his criticism was aimed primarily at Chief Justice John Roberts, who provided the pivotal vote to uphold Obamacare nine years ago and voted Thursday to leave the law intact by concluding that the Republican-led states seeking to overturn it lacked legal standing to sue.
In the latest Obamacare case, the chief justice left authorship of the majority opinion to the court’s second-longest-serving justice, Stephen Breyer, but the result was vintage Roberts: a largely-technical, 7-2 decision finding a lack of standing for the states and individuals challenging the law, while pushing aside more fundamental questions about the law’s constitutionality.
Roberts was the author of the opinion the court issued Thursday finding very narrow grounds to strike down Philadelphia’s ban on Catholic Social Services due to its policy against vetting same-sex couples for foster care.
Alito complained that Roberts’ reading of the Philadelphia ordinance and a similar state law was so Talmudic that it meant nothing in other cases and could quickly be evaded by the city through minor changes.
Despite the obviously tense Alito-Roberts dynamic, what unfolded Thursday at the court was not simply a one-on-one grudge match. It was more like a tag-team wrestling event, with Justice Neil Gorsuch repeating much of Alito’s criticism and the court’s newest conservative justices — Amy Coney Barrett and Brett Kavanaugh — coming to Roberts’ defense.
“Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid ‘picking a side,” Gorsuch wrote in the foster-care case, in an opinion joined by Alito and Justice Clarence Thomas. “Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”
Despite the obviously tense Alito-Roberts dynamic, what unfolded Thursday at the court was not simply a one-on-one grudge match. It was more like a tag-team wrestling event, with Justice Neil Gorsuch repeating much of Alito’s criticism and the court’s newest conservative justices — Amy Coney Barrett and Brett Kavanaugh — coming to Roberts’ defense.
“Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid ‘picking a side,” Gorsuch wrote in the foster-care case, in an opinion joined by Alito and Justice Clarence Thomas. “Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”
https://www.politico.com/news/2021/06/1 ... ump-495121
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