Cross-posted from Dorf on Law
As I noted last week, tomorrow I'll be spending the day joining a great collection of law professors, lawyers, one journalist, and one judge to talk about the most recent SCOTUS term and preview the coming one. In last week's post I previewed my remarks on a case at the intersection of the dormant commerce clause and the 21st amendment. I also promised that I would follow up with two more posts: one on the Term in general and the other with some additional commentary on one of the Term's blockbusters for which I also will be providing an overview at the PLI conference: the Bladensburg Peace Cross Establishment Clause case. I'm going to break that promise (kinda) by talking about both in today's post.
But first, a reminder: You can still sign up to see the day-long event live in NYC, at one of various satellite locations, or from the comfort of your computer. Here's an alphabetical list of the panelists: Joan Biskupic; Erwin Chemerinsky; Sherry Colb; Me; Miguel Estrada; Leon Friedman; Judson Littleton; Janai Nelson; Burt Neuborne; Cristina Rodriguez; Ted Shaw; Martin Schwartz; and (Hon.) Jeff Sutton.
My very big-picture takeaway from OT 2018 is the same as my takeaway for every Term: The natural unit for analysis of the Supreme Court is not a Term but a Court, meaning a stable group of justices. This past Term we saw a "new Court"--new because it was the first Term without Justice Kennedy and (for most of the Term) with Justice Kavanaugh. We saw what we might call Roberts Court version 8. What were the prior versions?
1) Roberts Court with Justice O'Connor until Justice Alito was confirmed; 2) Roberts Court with Justice Alito; 3) Roberts Court with Justice Sotomayor in place of Justice Souter; 4) Roberts Court with Justice Kagan in place of Justice Stevens; 5) Roberts Court with eight justices during the long period after Justice Scalia's death during the Senate's refusal to consider Judge Garland's nomination and until Justice Gorsuch was confirmed; 6) Roberts Court back at full strength with Justice Gorsuch; 7) Roberts Court back to eight after Justice Kennedy's retirement as the hearing on then-Judge Kavanaugh continued; 8) Roberts Court with Justice Kavanaugh as currently configured.
One can quibble with the delineation. Arguably we could discount versions 1) and 7), because little of consequence occurred during those particular interregna, but the exact periodization is unimportant. What matters is the overall composition of the Court. A version with eight justices is very different from a version with Justice Gorsuch as the ninth. Likewise, a version with Justice Kavanaugh is very different from the prior version with Justice Kennedy.
Or is it? Some statistics (available from SCOTUSblog) suggest that the substitution of Kavanaugh for Kennedy has had little effect. Last Term, Justice Kavanaugh was in tight agreement with Chief Justice Roberts (92%) and in nearly as tight agreement with Justice Alito (91%). The only pair of Justices that were even closer to one another were Ginsburg and Sotomayor (93%). Meanwhile, Kavanaugh agreed with Gorsuch no more often than Kavanaugh agreed with Kagan (70% each). That's quite similar to Justice Kennedy's last Term on the Court, when he agreed most often with CJ Roberts (90%) and was actually more likely to side with the other conservatives over the liberals than was Kavanaugh in his first Term. Could the substitution of Kavanaugh for Kennedy have moved the Court to the left?!
Further statistical evidence for that arresting hypothesis comes from the fact that in the last Term there were actually more 5-4 decisions in which the four liberals voted as a bloc and picked up one of the conservatives than in which all five conservatives voted as a bloc. And the evidence isn't just statistical. Remember I promised to say something further about the Bladensburg Cross case: Well there, Justice Alito's majority opinion was joined in full by Roberts, Breyer, and Kavanaugh, as well as in substantial part by Kagan. They were outflanked to the left by Ginsburg and Sotomayor and to the far right by Thomas and Gorsuch. The Alito opinion was balanced and moderate (even if I didn't agree with everything in it). Could we be witnessing a new pattern in Roberts Court version 8, in which there is a moderate bloc of left-leaning centrists (Breyer and Kagan) plus right-leaning centrists (Roberts, Alito, Kavanaugh), and then a liberal bloc (Ginsburg and Sotomayor) and a very conservative bloc (Thomas and Gorsuch)?
I think that's a real phenomenon that will continue to show up occasionally, but as a general account of the Court the short answer is NOOOOOOOOOO! The idiosyncrasies of a single Term are just too great to permit any substantial generalization. That's especially true when one looks at a Justice's first Term. Remember how Harry Blackmun was considered the "Minnesota Twin" of Warren Burger? No, you're too young? Well, he was. And then over time they became very very different justices. When the red-hot-button issues return to the Court, the smart money is on right/left-breaking 5-4 decisions.
Finally, I want to suggest that there is one likely long-term phenomenon on Roberts Court Version 8 (or possibly successive versions) that our current politics is masking. After Gundy v. US, it is very likely that the Court will revive the nondelegation doctrine. So-called Auer deference (to an agency's construction of its own regs) survived in Kisor v. Wilkie, but only just barely. And you can expect Chevron deference to be weakened or perhaps even fully abandoned in the not-too-distant future. Collectively, these and other doctrinal moves will constitute a full frontal judicial attack on the administrative state.
We have thus far only witnessed skirmishes, however, for two main reasons. First, the conservatives are just now consolidating their power. (Kavanaugh didn't participate in Gundy, for example.) Second, and more fundamentally, we are more likely to see conservatives attack the administrative state with shock and awe when a Democrat sits in the White House. For now, the conservative bloc's jurisprudential druthers face resistance from their own ideological druthers. Thus, some or all of the conservative justices who generally dislike broad delegation find themselves upholding Trump administration policies from the Travel Ban (the previous Term) to the citizenship question on the census (for four justices this Term) to Trump's border wall (in their stay order late last week).
To be clear, I understand that lawyerly distinctions can be and were drawn between those cases and other cases in which the conservatives did not defer to agency action. It's not all politics. But anyone who pays the slightest bit of attention understands that there's an awful lot of politics. And for now, the politics of support for a Republican administration tempers the conservatives' hostility to the administrative state. It won't always.
Bottom Line: We have only just begun to see the true nature of Roberts Court version 8.