Dahlia, Walter, Dawn, Dick, Akhil,
I’m bored with Anthony Kennedy! Let’s talk about the liberals.
Everyone seems to agree that if and when Judge Merrick Garland becomes Justice Garland, the liberal bloc will split into factions. That seems undeniable: Right now, the liberals vote together for primarily pragmatic purposes, smoothing over disagreements in a quest to find a fifth vote for the outcomes they prefer. Justice Ruth Bader Ginsburg famously held a strategy session during the first Obamacare case, encouraging her colleagues to agree with whatever logic Chief Justice John Roberts used to uphold the individual mandate. When Kennedy chose to write the marriage equality opinion himself, Ginsburg purportedly urged her fellow liberals to join whatever opinion he produced, even if it wasn’t their preferred rationale.
The liberal bloc’s unanimity hung together this term, with one glaring exception, in every major case. But in the smaller cases, and on the sidelines of the blockbusters, the liberals often scattered in fascinating ways. Their unexpected and unusual voting patterns might presage the divisions that are bound to develop once liberals can disagree among themselves and still reach five votes for a progressive result.
Consider Monday’s decision in Voisine v. United States, better known as the case that made Justice Clarence Thomas speak. Voisine involved a federal statute that bars a person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm when that crime involved “the use of physical force.” The question in Voisine: Does a misdemeanor assault conviction for merely reckless conduct—dangerously careless behavior that unintentionally causes physical harm—qualify as “the use of physical force” under the federal law?
In an opinion penned by Justice Elena Kagan, six justices said yes. Two said no: Thomas and Justice Sonia Sotomayor. Thomas and Sotomayor argued that the court had “blur[red] the distinction between recklessness and intentional wrongdoing” in a manner unfair to criminal defendants. “When a person acts with a practical certainty that he will employ force, he intends to cause harm,” Thomas wrote. “In the case of reckless wrongdoing, however, the injury the actor has caused is just an accidental byproduct of inappropriately risky behavior; he has not actively employed force.”
The upshot of this (admittedly dry) language is that Thomas and Sotomayor—the most conservative and liberal justices, respectively—agree that the majority was too quick to waive aside linguistic nuance in an effort to affect what it believed to be Congress’ intent, permitting the unjust punishment of reckless defendants. (Thomas also complained that the court had treated “the right to bear arms” too “cavalierly,” thereby “relegat[ing] the Second Amendment to a second-class right”; Sotomayor didn’t join this gun-toting portion of his dissent.)
Sotomayor and Thomas’ partnership is really quite logical: Sotomayor cares deeply about defendants’ rights; Thomas is dubious of federal power in the realm of criminal law; and here, both interests neatly aligned. That’s why the two teamed up for a case earlier in the term, Torres v. Lynch, to argue against a reading of a federal law that gave the government excessive latitude in determining which criminal defendants are “deportable.” And it’s why Sotomayor paired with the chief in Ocasio v. United States to dissent from a decision broadening the government’s power to prosecute for conspiracy to commit extortion. (Roberts is similarly skeptical of Congress’ power to make and enforce criminal law—a task traditionally left to the states.) The makeshift dream team of Sotomayor and Roberts also dissented together in Bank Markazi v. Peterson, a separation-of-powers case that expanded Congress’ ability to guide courts toward a certain result in specific criminal cases.
But for most of this term, Sotomayor stuck with Ginsburg to anchor the court’s left wing. Sotomayor and Ginsburg stuck to their guns on Zubik v. Burwell, the contraceptive mandate case, attaching a concurrence to the court’s punt to remind lower courts that any solution must ensure that women still receive “seamless contraceptive coverage.” It was Sotomayor and Ginsburg, too, who pushed back against Thomas and Justice Samuel Alito’s galling attempt to undermine a ruling limiting juvenile life without parole. The two also asserted that cops should be required to get a warrant before forcing a driver to take a breath test and that Puerto Rico should be allowed to restructure its debt to stave off a “humanitarian crisis.”
If Sotomayor and Ginsburg now serve as the court’s left flank, Kagan and Breyer comprise its moderately progressive center—sometimes along with the left-drifting Kennedy. The two share similar temperaments, judicial philosophies, and modes of statutory interpretation; they’re also tacticians, building consensus where Sotomayor and Ginsburg refuse to compromise.
Unfortunately, the most interesting liberal vote this year was also the most devastating: Breyer joined the conservatives to slash into the exclusionary rule, providing a fifth vote to allow what should be considered illegally obtained evidence to be used at trial. Breyer is notoriously weak on the Fourth Amendment, and his votes on search-and-seizure cases can be erratic and unpredictable; he seems to value flexible, police-friendly conclusions over, well, the Constitution. He appears to share this quality with one Merrick Garland. This time next year, we may well be talking about the impact of a Breyer–Garland alliance on constitutional law.
So much to look forward to!