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Likewise in United States v. Texas (considering the stay on enforcement of Texas’s S.B. 4 immigration law), Barrett along with Justice Brett M. Kavanaugh offered the U.S. Court of Appeals for the 5th Circuit an opening to take up the case promptly, which it did, rather than wade into a procedural fight over a stay in a case concerning Texas’s constitutionally suspect law.
As Supreme Court expert Steve Vladeck put it, “the Barrett/Kavanaugh concurrence went out of its way to nudge the Fifth Circuit — noting not only that the Fifth Circuit should be able to rule on the stay pending appeal ‘promptly,’ but that, ‘If a decision does not issue soon, the applicants may return to this Court.’” In essence, Barrett said the Supreme Court would not meddle in a circuit’s administrative business. But if the 5th Circuit actually allowed this constitutional monstrosity to proceed, she would have a different view.
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And in Moore v. Harper (the independent state legislature doctrine), Barrett joined in the chief justice’s majority opinion along with the three Democratic-appointed justices in batting down the radical notion that state courts had no role in determining alleged violations of state election laws (provided they did “not transgress the ordinary bounds of judicial review”).
Beyond her opinions in high profile cases, Barrett also sought to repair the court’s reputation damaged by right-wing partisanship. She has started appearing alongside Sotomayor publicly to insist that the court’s ideological combatants are more collegial than they might appear. Perhaps she is.
Barrett is no Sandra Day O’Connor (a true swing justice). Barrett’s stance on Roe v. Wade was just as extreme as the other right-wingers. Nevertheless, her efforts to carve an independent niche on the court should not be ignored.
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On the other hand, there is no limit to what Justices Alito and Thomas will do.
In contrast to Barrett, no right-wing theory or activist invitation is too wacky for Alito and Thomas to entertain.
During oral argument on Danco Laboratories, L.L.C. v. Alliance for Hippocratic Medicine (considering the Food and Drug Administration’s approval of mifepristone), Alito and Thomas took up the right-wing infatuation with the Comstock Act, passed in 1873. Alito, alone among the justices, seemed anxious to speed past the very real “standing” issue to ruminate about a means of banning abortion nationwide.
The Comstock law, which has not been enforced in about a century, bans sending “every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” (Also, certainly unconstitutionally, it bans a large category of vaguely defined pornography.) Thomas and Alito seem ready and willing to deploy the law in a way it has never been applied: namely, to states where abortion is otherwise legal, thereby threatening the availability of medical abortions nationwide.
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The Post reported, “Some experts and Biden officials fear Alito and Thomas are planning to write a separate opinion focused solely on the Comstock Act, arguing that the law remains viable and providing legal cover to a future administration that seeks to invoke it.” Even if Alito and Thomas do not carry the day, the Hill reported, “access to abortion pills could still very much be at risk if Alito and Thomas succeed in soliciting a Comstock-focused challenge in the future,” abortion rights defenders fear. A future Republican administration might well start trying to employ the law to throw abortion providers in jail.
Fishing for a hook to extrapolate the Dobbs v. Jackson Women’s Health Organization ruling into a nationwide ban on medical abortions epitomizes these justices’ radical disregard for precedent and brazen judicial activism. Indeed, Alito and Thomas increasingly seem like stalking horses for the far-right agenda, be it on guns, abortion or voting.
The Supreme Court’s credibility
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Numerous polls show the court’s approval has cratered, likely a function of its ethics scandals, partisan rhetoric and aggressive reversal of precedent. In other words, judicial imperialism and disdain for ethical rules that apply even to members of Congress are unpopular with voters.
Increasingly partisan Justices Thomas and Alito no longer bother to conceal their contempt for ethical restrictions, congressional oversight or judicial temperament. They have repeatedly failed to disclose luxurious gifts (with no sign of remorse) and remain adamant that they will accept no outside oversight.
After a firestorm of protest over financial disclosure lapses, Chief Justice John G. Roberts Jr. released ethical guidelines so weak that they lack an enforcement mechanism. Worse, the guidelines are so porous that they posed no barrier to Thomas sitting on cases involving attempts to overturn the 2020 election that his wife supported.
Unless the rest of the court decides to restrain Thomas and Alito, concerns about ethical lapses and misalignment with contemporary American values will deepen, heightening demands for congressional responses (e.g., mandatory ethics, term limits, court expansion). If that happens, Alito and Thomas will be largely responsible.
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Supreme Court observers frequently refer to its right-wing majority of six as a single bloc. However, differences among those six have become more apparent over time. Justices Samuel A. Alito Jr. and Clarence Thomas’s extreme judicial activism, partisan screeds and ethics controversies put them in a category unto themselves. Meanwhile, Justice Amy Coney Barrett has demonstrated surprising independence.
Watch Justice Barrett.
Not all Republican-appointed judges are the same. In Trump v. Anderson (concerning disqualification under Section 3 of the 14th Amendment of four-time indicted and former president Donald Trump), for example, Barrett along with Justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor criticized the maximalist majority opinion, which held that not only could state courts not determine disqualification but that Congress had to act before any candidate could be disqualified from federal office.
Like the so-called liberal justices, Barrett was disinclined to address “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” The court decided too much, she agreed. Her complaint with the so-called liberal justices was primarily tonal. (“This is not the time to amplify disagreement with stridency.”)
Likewise in United States v. Texas (considering the stay on enforcement of Texas’s S.B. 4 immigration law), Barrett along with Justice Brett M. Kavanaugh offered the U.S. Court of Appeals for the 5th Circuit an opening to take up the case promptly, which it did, rather than wade into a procedural fight over a stay in a case concerning Texas’s constitutionally suspect law.
As Supreme Court expert Steve Vladeck put it, “the Barrett/Kavanaugh concurrence went out of its way to nudge the Fifth Circuit — noting not only that the Fifth Circuit should be able to rule on the stay pending appeal ‘promptly,’ but that, ‘If a decision does not issue soon, the applicants may return to this Court.’” In essence, Barrett said the Supreme Court would not meddle in a circuit’s administrative business. But if the 5th Circuit actually allowed this constitutional monstrosity to proceed, she would have a different view.
And in Moore v. Harper (the independent state legislature doctrine), Barrett joined in the chief justice’s majority opinion along with the three Democratic-appointed justices in batting down the radical notion that state courts had no role in determining alleged violations of state election laws (provided they did “not transgress the ordinary bounds of judicial review”).
Beyond her opinions in high profile cases, Barrett also sought to repair the court’s reputation damaged by right-wing partisanship. She has started appearing alongside Sotomayor publicly to insist that the court’s ideological combatants are more collegial than they might appear. Perhaps she is.
Barrett is no Sandra Day O’Connor (a true swing justice). Barrett’s stance on Roe v. Wade was just as extreme as the other right-wingers. Nevertheless, her efforts to carve an independent niche on the court should not be ignored.
On the other hand, there is no limit to what Justices Alito and Thomas will do.
In contrast to Barrett, no right-wing theory or activist invitation is too wacky for Alito and Thomas to entertain.
During oral argument on Danco Laboratories, L.L.C. v. Alliance for Hippocratic Medicine (considering the Food and Drug Administration’s approval of mifepristone), Alito and Thomas took up the right-wing infatuation with the Comstock Act, passed in 1873. Alito, alone among the justices, seemed anxious to speed past the very real “standing” issue to ruminate about a means of banning abortion nationwide.
The Comstock law, which has not been enforced in about a century, bans sending “every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” (Also, certainly unconstitutionally, it bans a large category of vaguely defined pornography.) Thomas and Alito seem ready and willing to deploy the law in a way it has never been applied: namely, to states where abortion is otherwise legal, thereby threatening the availability of medical abortions nationwide.
The Post reported, “Some experts and Biden officials fear Alito and Thomas are planning to write a separate opinion focused solely on the Comstock Act, arguing that the law remains viable and providing legal cover to a future administration that seeks to invoke it.” Even if Alito and Thomas do not carry the day, the Hill reported, “access to abortion pills could still very much be at risk if Alito and Thomas succeed in soliciting a Comstock-focused challenge in the future,” abortion rights defenders fear. A future Republican administration might well start trying to employ the law to throw abortion providers in jail.
Fishing for a hook to extrapolate the Dobbs v. Jackson Women’s Health Organization ruling into a nationwide ban on medical abortions epitomizes these justices’ radical disregard for precedent and brazen judicial activism. Indeed, Alito and Thomas increasingly seem like stalking horses for the far-right agenda, be it on guns, abortion or voting.
The Supreme Court’s credibility
Numerous polls show the court’s approval has cratered, likely a function of its ethics scandals, partisan rhetoric and aggressive reversal of precedent. In other words, judicial imperialism and disdain for ethical rules that apply even to members of Congress are unpopular with voters.
Increasingly partisan Justices Thomas and Alito no longer bother to conceal their contempt for ethical restrictions, congressional oversight or judicial temperament. They have repeatedly failed to disclose luxurious gifts (with no sign of remorse) and remain adamant that they will accept no outside oversight.
After a firestorm of protest over financial disclosure lapses, Chief Justice John G. Roberts Jr. released ethical guidelines so weak that they lack an enforcement mechanism. Worse, the guidelines are so porous that they posed no barrier to Thomas sitting on cases involving attempts to overturn the 2020 election that his wife supported.
Unless the rest of the court decides to restrain Thomas and Alito, concerns about ethical lapses and misalignment with contemporary American values will deepen, heightening demands for congressional responses (e.g., mandatory ethics, term limits, court expansion). If that happens, Alito and Thomas will be largely responsible.
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