“So far, we have seen little from either Barrett or Kavanaugh to justify conservatives’ high hopes for them,” Shapiro told Fox News.
“To be sure, they haven’t engaged in David Souter-type liberal rulings, or Anthony Kennedy-style vacillation. But they have been markedly unambitious in their judicial approaches, most obviously in Fulton, which should have presented a clear opportunity to overrule Employment Division v. Smith, and in their unwillingness to accept the Barronelle Stutzman case.”
His comments were referring to two high-profile cases – Ingersoll & Freed v. Arlene’s Flowers Inc. and Fulton v. City of Philadelphia – that have been closely watched by conservatives. Each touched on the conflict between religious liberty and the interests of same-sex couples while also providing opportunities for the court to deliver decisive wins to conservatives.
Like Shapiro, others in the media have indicated that Kavanaugh and Barrett – both contentious nominees of former President Donald Trump – were shying away from controversy in their judicial opinions. But some of the boldest criticism appeared to come from other conservative justices – specifically Clarence Thomas, Samuel Alito and fellow Trump appointee Neil Gorsuch.
In a recent op-ed for Newsweek, law professor Josh Blackman pointed to various opinions in which those three seemed to suggest Kavanaugh and Barrett formed majorities that lacked the “fortitude” appropriate for handling major cases. That was the wording Gorsuch used in arguing the court should have gone further in Fulton.
Although the case was a partial victory for conservatives, it wasn’t the win they had hoped for. For years, conservatives have been arguing for a removal of the precedent set by Justice Antonin Scalia in Employment Division v. Smith. Scalia, Barrett’s mentor, ruled in that case that neutral laws with general applicability didn’t violate the First Amendment’s free exercise clause.
Rather than overturning Smith, Chief Justice John Roberts and Kavanaugh, who clerked for the longtime swing-vote Justice Anthony Kennedy, joined Barrett and others in a narrower decision. In separate, concurring opinion joined by Kavanaugh and Justice Stephen Breyer, Barrett criticized Smith but expressed concerns about replacing it with another standard. “We need not wrestle with these questions in this case, though, because the same standard applies regardless whether Smith stays or goes,” she said.
Gorsuch’s opinion, which Thomas and Alito joined, suggested the majority was “dodging the question” of Smith. It added: “These cases will keep coming until the court musters the fortitude to supply an answer. Respectfully, it should have done so today.”
Alito, in an opinion joined by Gorsuch and Thomas, similarly argued that the court took an “easy out” in declining to hear an excessive use of force case (Lombardo v. City of St. Louis). It’s unclear how Barrett and Kavanaugh voted in that case, but cases generally need just four votes from the court to grant certiorari. Therefore, the three dissenters would have presumably only needed one of the other justices to vote in favor of hearing the case. The same was true for the Stutzman case (Arlene Flowers), which Gorsuch, Alito and Thomas were in favor of the court hearing.
In comparison to their conservative colleagues, Barrett and Kavanaugh similarly offered a more restrained support for a church seeking to block California’s coronavirus-related restrictions. Whereas Gorsuch and Thomas would have granted the full injunction requested, Barrett and Kavanaugh said the church failed to show why the court should block a ban on chanting or singing. Many have noted that in doing so, Barrett used her first written opinion to effectively oppose people of faith.
Implications for Roe and Mississippi’s abortion law
Divides like those have led some to speculate the court actually has a 3-3-3 ideological composition rather than the 6-3 conservative majority others have suggested. This could prove detrimental to a centerpiece of the conservative legal movement: overturning Roe v. Wade.
“The cases mentioned in the Newsweek piece provide early evidence that at best, Barrett and Kavanaugh are incrementalists rather than change agents,” Shapiro told Fox News. “Conservatives can only hope that that assessment turns out to be incorrect.”
For years, conservatives have fought to appoint justices who could finally undo what they see as a decades-old, unconstitutional precedent permitting abortion. Hopes remained high when news surfaced last month that the court had decided to take up a 15-week abortion ban from Mississippi.
“This is it,” said Abby Johnson, a former Planned Parenthood director who spoke at the Republican National Convention last year. She added that “this is what we have been waiting for for decades.”
Live Action’s Lila Rose similarly tweeted: “Goodbye and good riddance, Roe v Wade,” adding “It’s a matter of time. Roe v Wade is a nonsensical decision with murky legal precedent that is constantly shifting because it has no constitutional basis.”
Kavanaugh, and particularly Barrett, have long been viewed by both sides as critical to weakening Roe. Barrett, in particular, was seen this way after various statements and positions she took on abortion.
For example, she wrote in a 2013 article that “public response to controversial cases like Roe reflects public rejection of the proposition that [precedent] can declare a permanent victor in a divisive constitutional struggle rather than desire that the precedent remain forever unchanging.”
“Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule,” she wrote.
As a judge, she also voted in favor of a parental notification law and indicated support for other abortion restrictions. However, she also said she didn’t think “the right to abortion would change,” only state flexibility in regulating it.
And more recent decisions, like Fulton, have indicated she and Kavanaugh could follow the incrementalist path often carved out by Roberts. In doing so, they might avoid the full repeal of Roe that many conservatives seek.
Before Barrett joined the court, Thomas, Alito and Gorsuch seemed to swipe at Kavanaugh and the others for refusing to take up a case involving Planned Parenthood’s provider agreement with Medicaid. As in Lombardo, it’s unclear how the justices voted but the general four-vote requirement suggests that Kavanaugh joined the others in refusing to take up the case.
Writing in opposition, Thomas alleged that the court had refused to do its job because the case involved Planned Parenthood. He went on to cite Federalist No. 78, admonishing the consideration of “popularity” in court decisions.
Kavanaugh, however, partially joined the dissent opposing Roberts’ and the liberal justices’ decision to strike down Louisiana’s abortion clinic regulations.