“We argue about the fighting between the Conservatives and when this coalition is breaking up and where it is going,” complained Harvard Law School lecturer Nancy Gertner, a former federal judge. “That’s a dramatic difference from two or three years ago.”
At the head of the right-wing indictments in both cases on Thursday was Judge Samuel Alito, who drafted biting opinions that his colleagues challenged for issuing narrow judgments that, in his opinion, aimed at defusing political tensions rather than interpreting the law aimed.
“After receiving more than 2,500 pages of briefing, and after more than half a year of reflection, the court released a whiff of a decision that leaves religious freedom in a confused and vulnerable state. Those who rely on this court to stand up for the First Amendment have every right to be disappointed – as am I, “wrote Alito in the foster family case, despite the unanimous victory of the Catholic charity.
In the Obamacare dispute, Alito sarcastically accused the majority of repeatedly indulging in legal subtleties in order to avoid the politically unsympathetic step of repealing the groundbreaking health law.
“Nobody can be impressed with the efforts this court has made to defend the Court of Auditors 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 Court of Auditors can’t even get a foot in the door to face a constitutional challenge. Fans of legal ingenuity will applaud once again. But I have to respectfully disagree. “
While Alito observed the court’s traditional propriety by railing against “the majority”, his criticism was undoubtedly primarily directed against Chief Justice John Roberts, who cast the decisive vote for the upholding of Obamacare nine years ago and voted for it on Thursday Voted to leave the bill intact concluded that the Republican-led states that tried to repeal it had no legal power to sue.
In the recent Obamacare case, the Chief Justice left authorship of majority opinion to the court’s second-longest-serving judge, Stephen Breyer, but the result was an old Roberts: a largely technical 7-2 ruling that noted a lack of stamina in the states and Individuals challenge the law while brushing aside more fundamental questions about the constitutionality of the law.
Roberts was the author of the opinion the court released Thursday which found very narrow rationale for lifting the ban on Catholic social services in Philadelphia due to its policy against screening 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 be bypassed quickly by the city with minor changes.
“That decision might as well be written on the dissolving paper sold in magic shops,” Alito wrote mockingly.
Despite Alito-Roberts’ obviously tense dynamic, what played out on the pitch on Thursday wasn’t just a one-on-one grudge match. It was more of a tag team wrestling event, with Judge Neil Gorsuch reiterating 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 that today’s detour will at least steer the court around the controversial issue and avoid choosing a side,” wrote Gorsuch in a statement signed by Alito and Justice Clarence Thomas. “Avoiding the question today guarantees that it will return tomorrow. These cases will keep coming until the court has the strength to give an answer. Respectfully, it should have done that today. “
Roberts seemed careful not to take the bait. His majority decision made only a single, casual reference to Alito’s massive dissent and chose to focus more on Gorsuch, which the chief, oddly enough, called “the consensus”.
Roberts said the manner in which the anti-discrimination regulation and policy has been applied leaves the case open on that basis, meaning that the court has “no opportunity” to use the case to reconsider a 21-year precedent, which Alito regards as religiously hostile to freedom.
Barrett stepped in to say that while she agreed with Alito that the precedent was flawed, there was “no reason” to overturn it now. Kavanaugh supported this view and got on the point with the Chief as well.
Will the split among the conservatives continue?
It is not yet clear whether the murderous skirmishes of the Supreme Court Conservatives have long-term implications in other cases. The cases the court accepted during this tenure are generally considered to be of medium importance, but judges have accepted an abortion case due to be heard in the fall, which undermines the constitutional right to abortion that the court gave in the landmark 1973 case found, upside down or could restrict. Roe versus Wade.
Still, some scholars doubt that the precedent is really in jeopardy, and insist that the tendency of judges like Kavanaugh and Barrett to side with Robert in some contentious cases undermines the idea of a conservative majority of six judges.
“I think you have a three-three-three dish,” said Professor Josh Blackman of the South Texas College of Law. “I disagree with the idea that we have a conservative majority of six on many of these divisive issues.”
Some analysts suggest that the noisy public argument the Conservatives aired on Thursday was in part due to complaints about Breyer’s horse trade.
The unusual length and meticulous detail in Alito’s submission in the Philadelphia case made some court observers wonder whether it might have been drafted as a majority opinion, but later lost that status due to a postponement from the court’s original vote. A similar scenario played out in the Obamacare case in 2012, as reported by CBS News and elsewhere.
Alito’s complaint on Thursday over more than six months of “thinking after arguments” in the dispute over same-sex care cases also fuels suspicions that more than the routine exchange of views was going on.
“Alito’s 77-page Fulton rivalry makes me think that Roberts actually assigned him the original majority vote and the Obamacare decision to himself until Breyer orchestrated a bipartisan coup in Fulton, which Roberts took for himself when he became Obamacare Breyer assigned, “Mike Sacks, an attorney and legal reporter for WNYW-TV in New York, wrote on Twitter.
Blackman said he too thinks something unusual has happened in the care case.
“I have this mood,” said the professor. “I think Alito was just pissed off. He was frustrated. “