The Supreme Court’s 'fragmented' right-wing majority lacks a clear 'leader': journalist

25 October 2022

When the late liberal Justice Ruth Bader Ginsburg was replaced by far-right social conservative and Donald Trump appointee Amy Coney Barrett in 2020, it was a definite game-changer for the U.S. Supreme Court — one that led to the demise of Roe v. Wade and the Court limiting the regulatory power of the Environmental Protection Agency (EPA). The U.S. now has its most hard-right, socially conservative Supreme Court in generations, and Republican-appointed justices now outnumber Democrat-appointed justices 6-3.

John Roberts, appointed by President George W. Bush in 2005, still holds the title “Supreme Court chief justice,” but the other Republican-appointed justices are by no means in lockstep with Roberts 100 percent of the time. Roberts is conservative, but he isn’t as far to the right as Barrett, Justice Clarence Thomas or Justice Samuel Alito — and he was the only Republican-appointed justice who voted against overturning Roe in the Dobbs v. Jackson Women’s Health Organization ruling in May.

John Kruzel, in an article published by The Hill on October 25, stresses that although the High Court is clearly “dominated” by the right in 2022, it has no real leader.

“The Supreme Court’s six Republican-appointed justices clearly dominate the bench, but as they reshape American law, there is little consensus among Court watchers over who is the conservative wing’s true leader,” Kruzel explains. “Some legal experts say it’s Brett Kavanaugh, the Court’s median justice. Others point to the longest tenured justice, Clarence Thomas, whose hardline conservatism has increasingly moved from the Court’s fringes to its frontiers as the bench has swung rightward.”

Kruzel continues, “Some mention the ‘attack dog’ role of Samuel Alito, an unapologetic conservative in a hyperpolarized era whose defiant opinion scuttling Roe v. Wade erased the nearly 50-year-old constitutional right to abortion and earned him conservative plaudits. Others say leadership varies by issue, noting, for instance, that Chief Justice John Roberts may end up writing majority opinions in hot-button cases this term.”

Adam Feldman of the blog Empirical SCOTUS believes that Kavanaugh is “probably the most powerful” justice in 2022.

“Kavanaugh’s position means he counts four members to his left — Roberts and the Court’s three liberals — as well as four justices to his right in Neil Gorsuch, Amy Coney Barrett, Alito and Thomas,” Kruzel writes. “This gives him leverage. In cases where Roberts and the liberals are pitted against the Court’s four more conservative justices, Kavanaugh not only represents the tie-breaking vote, but he can also use his vote to sway the extent of the Court’s opinion, Feldman said.”

Feldman told The Hill, “Kavanaugh can say: Look, I’m only going to venture out this way if I get the opinion myself, or else, I’m going in the other direction. So, he has power in a few different ways, and ultimately, he can force the hand of the person who’s assigning the case if he’s that vote.”

Kruzel reports that Irv Gornstein, executive director of Georgetown Law’s Supreme Court Institute, also views Kavanaugh as the Court’s most influential right-wing justice.

Gornstein told The Hill, “We’ve known for some time that the Court was headed in a rightward direction, with the only questions being how far and how fast. Last term tells us the answer depends on Justice Kavanaugh. Make no mistake: For now and the foreseeable future, this is Justice Kavanaugh’s court.”

But Robert Tsai, a law professor at Boston University, believes that the 74-year-old Thomas has become the Court’s most influential justice.

Tsai told The Hill, “It’s Clarence Thomas’s Court…. When Roberts is in a majority, he will be pulled right or lose the power to assign and be a hapless dissenter. The others don’t have the experience or gravitas yet to hold together a group whose members might occasionally get cold feet.”

Steve Schwinn, a University of Illinois, Chicago law professor, describes Alito as the Court’s right-wing “attack dog,” favoring a “no-holds-barred, in-your-face, and take-down-everything-at-any-cost approach.”

Schwinn told The Hill, “I agree that Roberts and Thomas are the true leaders in that they’ll get to decide when to unleash Alito.”

Harvard University law professor Laurence Tribe believes that the Court has no single leader on the right. Tribe told The Hill, “I suppose I’d say leadership, these days, varies by issue because the Court is more deeply divided and fragmented than ever, and the chambers are suspicious of one another even if they’re on the same side of various disagreements — especially after the extraordinary leak of the Alito draft in Dobbs…. With respect to matters of racial preference and affirmative action, in cases like those about to be argued this Halloween, Roberts will certainly write for the Court and is bound to play a leading role on the question of just how far back to turn the clock.”

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