“We are arguing over the battles between the Conservatives and when this coalition is breaking up and where it is going,” lamented Nancy Gertner, lecturer at Harvard Law School, a former federal judge. “It’s a dramatic difference from just two or three years ago. “
Judge Samuel Alito led the right-wing indictment in both cases on Thursday, which wrote caustic opinions criticizing his colleagues for making narrow decisions that he saw aimed at defusing political tensions rather than interpreting the law.
“After receiving more than 2,500 pages of briefing and after more than six months of post-argumentation, the court issued a suspicion of a ruling that leaves religious freedom in a confused and vulnerable state. Those who rely on this Court to defend the First Amendment have every right to be disappointed, as am I, ”wrote Alito in the foster care case, despite the unanimous victory of Catholic charity.
In the Obamacare dispute, Alito sarcastically accused the majority of repeatedly engaging in legal fallacy thefts to avoid the politically unpleasant step of overturning the landmark healthcare law.
“No one can fail to be impressed by the efforts that this Court has been prepared to go to to defend the ACA against all threats,” wrote Alito. “A penalty is a tax. The United States is a state. And 18 states that bear costly burdens under the ACA can’t even set foot in the door to raise a constitutional challenge. Fans of judicial inventiveness will applaud once again. But I must respectfully respect dissent.
While Alito observed traditional court decorum by cursing “the majority”, there was no doubt that his criticisms were primarily aimed at Chief Justice John Roberts, who provided the decisive vote to back Obamacare nine years ago. and voted Thursday to leave the law intact, concluding that Republican-led states seeking to overturn it lacked the legal capacity to prosecute.
In the latest Obamacare case, the chief justice left the authorship of the majority opinion to the court’s senior judge, Stephen Breyer, but the result was vintage Roberts: a largely technical decision, 7-2 finding a lack of quality for states and individuals challenging the law, while dismissing more fundamental questions about the constitutionality of the law.
Roberts authored the court’s opinion on Thursday, finding very narrow grounds for overturning Philadelphia’s ban on Catholic social services over its policy against examining same-sex couples for families of ‘Home.
Alito complained that Roberts’ reading of the Philadelphia Ordinance and similar state law was so Talmudic that it meant nothing in other cases and could quickly be bypassed by the city through minor changes.
“That decision might as well be written on the dissolving paper sold in magic stores,” Alito wrote derisively.
Despite Alito-Roberts’ obviously tense dynamic, what unfolded on the pitch Thursday was not just a one-on-one grudge match. It felt more like a tag team wrestling event, with Judge Neil Gorsuch repeating much of Alito’s criticism and the court’s most recent conservative judges – Amy Coney Barrett and Brett Kavanaugh – coming to Roberts’ defense.
“Perhaps our colleagues think today’s roundabout path will at least orient the court around the controversial subject and avoid ‘choosing sides,’ Gorsuch wrote in the foster care case, in an opinion joined by Alito and Judge Clarence Thomas. “Avoiding the issue today guarantees it will happen again tomorrow. These cases will continue until the Court finds the courage to provide an answer. Respectfully, it should have been do it today.
Roberts seemed determined not to take the bait. His majority decision made only one passing reference to Alito’s massive dissent and chose to focus more on that of Gorsuch, whom the leader oddly called “the deal.”
Roberts said the way the ordinance and anti-discrimination policy applied left the case open for resolution on that basis and meant the court had “no opportunity” to use the case to reconsider. a 21-year precedent that Alito considers hostile to religions. freedom.
Barrett stepped in to say that while she agreed with Alito that the previous one was flawed, there was “no reason” to cancel it now. Kavanaugh supported this view, also joining the Chief on the point.
Will the split between conservatives persist?
It is not yet clear whether infighting between high court conservatives has a long-term impact in other cases. The cases the court took this term are generally considered to be of medium importance, but judges have accepted that an abortion case will be heard in the fall, which could upset or reduce the constitutional right to abortion. that the court found in the landmark 1973 case of Roe v Wade.
Still, some researchers doubt the precedent is really in jeopardy and insist that the tendency of judges like Kavanaugh and Barrett to side with Roberts in some contentious cases undermines the idea of a Conservative majority of six judges.
“I think you have a three-three-three court,” said Professor Josh Blackman of South Texas College of Law. “I don’t agree with the idea that we have a six-member Conservative majority on many of these divisive issues.”
Some analysts suspect that the tiff public voice the Conservatives aired on Thursday could be, in part, due to criticism of the horse haggling carried out by Breyer.
The unusual length and minute details of Alito’s opinion in the Philadelphia case has made some observers question whether it could have been drafted as a majority opinion, but then lost that status due to a change from the original court vote. A similar scenario happened in the Obamacare case in 2012, according to reports from CBS News and elsewhere.
Alito’s lamentations on Thursday over more than six months of ‘post-argument cogitation’ in same-sex foster care dispute also fuel suspicion that something more than the exchange of opinions routine has occurred.
“Alito’s 77-page Fulton deal makes me think that Roberts actually attributed the original majority decision to him and himself the Obamacare decision until Breyer staged a bipartisan coup in Fulton that Roberts took ownership while reassigning Obamacare to Breyer, ”Mike Sacks, an attorney and legal reporter for WNYW-TV in New York, wrote on Twitter.
Blackman said he too believed something unusual had happened in the foster care case.
“I have that vibe,” the professor said. “I think Alito was just pissed off. He was frustrated.