Red Justices and Blue Justices is a Terrible Way to go Through Life...

Let's say you're feeling like doing something. It can be almost anything. I dunno, you want to sue the police for shooting your dog or get some money back from your neighbors for burning you with flaming Irish coffee or create a whole mini-state inside the currently existing state of Nebraska or dig a massive, multi-story bunker facility under your house. Simply put, there are two types of opinions another person can have about your future decision:

A person can opine about whether you *should or should not* be able to do something. They can express whether it feels right or wrong, moral or immoral, just or unjust. Such a person might say “it’s your property, you should be able to do whatever you want with it. Go forth and dig that basement.”

A person can also opine about whether you are *are allowed* to do something. Into this latter category fall lawyers, who will, often for far more money than anyone should really have to pay, render a professional opinion about what the rules say regarding a course of action you want to undertake, regardless of their own personal opinions about whether that seems fair, or right, or just, or whatever. If you come to me and ask me for my professional opinion about whether you can commit murder by selling an overdose victim some fentanyl, I'll tell you that in Minnesota you absolutely can. This is true whether or not I think this law is a good idea (It's a stupid idea). If you ask me whether you *are allowed* to dig a five-floor-deep facility under your house in preparation for the end of days, I’ll tell you that a SWAT team might be called. Legally speaking, I am not an expert on what should happen. I am an expert on what will happen.

For the purposes of many essays I write on this site, we will call experts on what *should* happen "politicians." Politicians hold opinions about whether the nation should tax rich people more, what drugs ought to be legalized, what people should go to jail, and so on. You, dear reader, are likely a politician, and your opinions on whether and when the bombs should be dropped, the banks should be saved, or the bastards should be charged, are all political questions.

Judges sit in a slightly different position than lawyers do. They say what the law is. Unlike a lawyer, their job isn’t strictly predictive. My job as a lawyer is to anticipate what a judge will do with a given case. A judge’s job is to apply the law.
…but unlike a politician, their job isn’t purely normative. They are not, in theory, supposed to be deciding cases by what “feels right.” A judge’s job is to apply the law. If they get it wrong, a higher court corrects them. If that court gets it wrong, a still higher court gets involved…but eventually we reach the end of the chain, the Supreme Court, the last word on what federal law says.

These nine justices…should we think of them more like lawyers (who merely render a professional opinion about what the law says or does) or more like politicians (who make decisions guided largely or entirely by what they think the right outcome should be)?

I won't presume to answer that question. Both possibilities are correct. What I will submit, on Thursday June 21st, 2023, the evening before a lot of spicy opinions are likely to drop, is that a schema that interprets all, or even most, supreme court decisions as political warfare between the six "red" justices and the three "blue" ones is inadequate. A naïve political approach is a VERY BAD way to predict what the Supreme Court will actually do in a given case.

(this picture is a few years out of date but I love it anyway, now you can share in my joy)

By "naïve politics", I mean the assumption that a given justice will usually or always favor whichever party or outcome aligns with their political inclinations. In this view, there are 6 "red" justices (organized from most to least conservative, as something like Thomas, Alito, Barrett, Gorsuch, Kavanaugh, and Roberts) and three "blue" justices (Kagan, then Jackson, then Sotomayor). The idea seems to be...and you will see a *lot* of commentary on this point tomorrow, that the "red" justices will decide cases that further the right's political program, and the "blue" justices will decide cases that further the left's, and there won't actually be much objective legal interpretation going on.

...this framework allows a cynical commentator to come to a few ex post conclusions about why a small number of cases came out the way they did. However, it's a phenomenally bad way to predict the results of a particular case ex ante.

As an experiment, let's try to link seven cases from this term to seven outcomes:

The cases are:

A: "Tyler": A case in which Hennepin County, Minnesota took a home away from a ninety-something year old African American grandmother. They took the house for an unpaid tax debt, sold it, and made far far more than Tyler owed. She sued to get her money back.

B: "Pork Producers": A controversial case in which Iowa pork farms sued to overturn a california animal cruelty statute that stopped them from selling pork in California

C: "Goldsmith": A close examination of "purpose and character" under the federal copyright statute, one of the factors in the four-factor test the statute calls for to determine "fair use"

D: "Milligan": A case in which the Alabama's redistricting plans were challenged under the civil rights act for unfairly diluting the African American vote.

E: "Brackeen": A case concerning whether Congress had impermissibly directed all state government's to preferentially favor Indian families or tribal institutions over others when placing native american children in adoption cases

F: "Rapanos": A case about the EPA's broad power to protect wetlands

G: "Ciminelli": A case involving a bribery scandal in New York's Cuomo administration, and whether a construction company given favorable treatment by that administration had committed wire fraud

The results are:

1: a 7-2 Opinion, with perhaps one of the most bitter and personal dissents in Supreme Court history.

2: a 9-0 Opinion which was totally predictable, featuring a 1-page concurrence by Alito

3: a 7-2 majority with multiple concurrences, in which only Thomas and Alito were in the dissent

4: a completely unexpected 5/4 decision in which two “conservative” justices “switched sides” to join with the three “liberals” (bonus points: can you guess which two?)

5: A badly fractured 5-4 opinion with numerous concurrences, the "5" is Gorsuch, Thomas, Barrett, Sotomayor, and Kagan, the "4" is Roberts, Alito, Kavanaugh, and Jackson (so, both sides were very “purple”).

6: a 9-0 opinion where all the justices agreed that one side should lose, but were sharply decided on why. The division there appears to be largely between the “liberal” and “conservative” wings of the court.

7: a 9-0 opinion so one-sided it comes perilously close to making fun of one of the litigants

The outcomes are:

A: Tyler: is result #7, the 9-0 decision that belittles one side, in this case Hennepin County. The beatdown here was obvious to anyone who heard the oral argument: legal commentators questioned Hennepin County's decision to even bring the case, and halfway through oral argument, it was abundantly clear that no justice was even remotely sympathetic to the county’s position that they could keep ALL the money from a house they confiscated, in order to make up for an unpaid tax debt. This case also features an interesting "Cross-ideological" Gorsuch/Jackson concurrence that opines the county's actions were also a violation of the excessive fines clause.

B: Pork Producers: this is result #5, a badly fractured 5-4 opinion with extreme ideological blurring. Note that this has the very "conservative" Gorsuch, Thomas, and Barrett joining with the quite "liberal" Sotomayor and Kagan to uphold California's ultraliberal restrictions on interstate commerce, while the new, "liberal" justice Ketanji Brown Jackson joins with Roberts, Alito, and Kavanaugh to argue in support of the pork industry

C: Goldsmith: this is result #1, the bitter dissent. This very narrow copyright dispute spawned a high-drama dissent by Kagan and Roberts. Both the majority and the dissent are conspicuosly barbed...and it's worth noting that the majority is authored by Sotomayor and the Dissent by Kagan. The Majority has copious footnotes calling out the dissent: "While keenly grasping the relationship between The Two Lolitas, the dissent fumbles the relationship between the first and fourth fair use factors."; "The result is a series of misstatements and exaggerations, from the dissent’s very first sentence." The dissent responds in kind, with an extremely snippy footnote right at the beginning: "AS readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are...I’ll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.” What explains this? Even Dobbs wasn’t this testy. Perhaps Sotomayor and Kagan have personal differences. Perhaps the Court is unusually passionate about copyright disputes. One explanatory factor that conspicuously *doesn't* work is mere politics.

D: Milligan: this is result #4, the unexpected 5/4 decision. Justices Roberts and Kavanaugh "switched sides" to join the court's three "liberals" in upholding a broad interpretation of the civil right's act, which stymied Alabama's redistricting plans and strengthened the black vote in Alabama. In terms of the long-term balance of political power between the “reds” and the “blues”, this may be the most important decision of the whole term.

E: Brackeen: This is result #2, the 7-2 majority with multiple concurrences. It upheld Congress' stated preference that Native American children be preferentially assigned to Native American families. Of the nine, only justices Alito and Thomas wrote against this result. This decision features a must-read concurrence by the "conservative" justice Gorsuch on the remedial nature of this law and the nation's long history of oppressing Native Americans.

F: Rapanos: This is result #6, the 9-0 decision where the only question was why one side should lose. The loser here is the EPA. Every single justice, red and blue alike, agreed that the EPA's rapacious definition of wetlands could not possibly be what congress had intended when they passed the clean water act. The justices were divided, however, on how expansive the statute actually was.

G: Ciminelli: This is result #2, the 9-0 decision which was totally predictable and featured a 1-page concurrence by Alito. The government lost, badly, under a novel theory of fraud far broader than the United States Wire Fraud Statute could permit. The court actually decided three cases on white-collar fraud and political corruption this term: Ciminelli, Percoco, and Dubin, all of these cases were 9-0 decisions in favor of criminal defendants. Evidently if there's one thing that's solidly cross-ideological, it's narrowing the scope of laws that target financial criminals, and that's true whether you're part of the Blue Tribe or the Red.

Some higher-level trends to note: None of these decisions are 6-3 (six reds, three blues). Indeed, there have been no such cases this term. Several decisions this term, including one of the above, feature Thomas/Alito dissents...which means the "reddest" justices aren't getting their way on this *very* conservative Supreme Court. Indeed, these two knuckleheads are the most frequent dissenters this term. They are LOSING.

Now, ex post one can come up with reasons why justices might decide the way they do for political reasons…perhaps the Pork Producers case is secretly about birth control pills (which Jackson somehow failed to realize?). Perhaps all nine justices are simply united in their real political program: making life easier for white collar criminals (and burglars, I suppose). I think you’ll find if you consider the outcome of these cases that virtually any purely “political” schema just gets too complex to fit. There are so many epicycles one can add to a model before one needs to find a better model.

Finally, and most importantly: these cases above…these are the important cases. I didn’t pick boutique cases to showcase fringe areas of agreement. I picked some of the most important cases this term: Tomorrow may feature decisions on affirmative action policies at certain elite universities, student loan programs, and a vexing case about whether a web designer can be compelled to make a wedding website for a gay couple. These are important cases, to be sure, but they PALE in comparison to some of the decisions above, which involve statutes that safeguard the familial and cultural integrity of Indian tribes, or the strength of the black vote in the deep south, against a demonstrated history of oppression and immiseration. The "red" justices have voted to sustain these massively important "blue" projects, cut the Cuomo administration some slack, and allow the state of California to disrupt national industries in furtherance of animal welfare...not because they think it's the right thing to do, but because it is what the law, as written, requires. The best way to predict what any justice will do is to consider (probably in order)

1: Their opinions on what they believe the law requires

2: Their decisions on similar cases in the past

3: How they believe the public will receive their decision.

Some of these factors involve politics…but none are purely political.

And this all true regardless of what the decisions tomorrow will bring.