In ranking the current justices on the Supreme Court, I was struck by how irrelevant their political labels are. A group of scholars placed the judges on an ideological spectrum, where conservative justices receive scores from 0 to 1, and liberal justices from 0 to –1. Clarence Thomas is the most conservative and Sonia Sotomayor the most liberal:
Clarence Thomas (.725)
Brett Kavanagh (.693)
Neil Gorsuch (.486)
Samuel Alito (.317)
John Roberts (.089)
Stephen Breyer (-.280)
Elena Kagan (-.302)
Ruth Ginsburg (-.518)
Sonia Sotomayor (-.521)
My ranking favors neither tribe. I evaluate these men and women purely as Constitutional jurists, not for their political leanings, and it turns out that each faction (Conservative and Liberal) yields about as much good and bad. Here are my rankings, followed by explanations. It was a given that Gorsuch and Kagan would be at top, and Sotomayor and Alito at the bottom; it was a delicate exercise fitting in between the other five.
1. Neil Gorsuch (C) — Excellent
2. Elena Kagan (L) — Excellent
3. Clarence Thomas (C) — Good
4. Ruth Ginsburg (L) — Good
5. John Roberts (C) — Decent
6. Stephen Breyer (L) — Decent
7. Brett Kavanagh (C) — Poor
8. Sonia Sotomayor (L) — Bad
9. Samuel Alito (C) — Disaster
1. Neil Gorsuch. Appointed in 2017 by Donald Trump. Rating: Excellent. The best justice on the court is an originalist like Scalia whom he replaced, but even better. Where Scalia threw his intelligence out the window on certain issues (he would have never ruled in favor of gays, transgendered, and the Native American Indians as Gorsuch has done), Gorsuch’s objectivity rarely cracks. When he took the oath of office, many of us cringed. This was the first Trump appointee to the highest office in the land, and would surely be a blight on the Constitution. But not only has he turned out to be a brilliant judicial thinker, he has sided with the liberal justices for a deciding vote more than any other conservative on the court. The reason is simple: he is a consistently conservative justice, even if his legal opinions sometimes happen to align him with liberal politics. For example, in United States v. Haymond (6/26/19), he wrote for the 5-4 majority (himself and the four liberals), overturning the lower court’s denial of a trial by jury to a man convicted a second time of carrying child pornography. (Rightfully: a new crime demands a new trial, no matter how despicable the offense. That’s a conservative legal position, though a liberal social point of view.) He also joined the liberals against the conservatives to protect immigrants from being deported in Sessions v. Dimaya (4/17/18), striking down a statute about “aggravated felonies” that was unconstitutionally vague. He even joined the liberals on a gun issue (United States v. Davis (6/24/19)), in which the Trump administration was trying to over-punish two criminal defendants; Gorsuch found the clause in the Armed Career Criminal Act unconstitutionally vague and not warranting stiffer penalties. To be sure, Gorsuch isn’t perfect; no justice ever is. His Achilles’ heel is labor law. When it comes to worker’s rights issues, I have a serious bone to pick with him. But that doesn’t diminish my respect for him as the best justice to serve on the court during by entire lifetime — that is to say, during the last 51 years, going all the way back to the Burger Court that started in 1969.
— At his best: Indian Rights (x3). In Washington State Department of Licensing v. Cougar Den Inc. (3/19/19), Gorsuch joined the four liberals (5-4) to rule that a fuel wholesaler owned by a member of the Yakama Indian Nation was exempt from paying state fuel taxes for using public highways because the Yakama Treaty of 1855 granted members of the Nation the right “to travel upon all public highways” and preempted its obligation to pay the tax. Only two months later, Gorsuch and the liberals ruled again in favor of Indians: In Herrera v. Wyoming (5/20/19), the majority (5-4) ruled (a) that statehood does not imply termination of reserved hunting rights for Indians, and (b) that establishment of a national forest does not render an area occupied — thereby upholding Indian treaties. Liberal politics, but conservative law, and the latter is what matters. More recently, this year, in Sharp v. Murphy (7/9/20), Gorsuch joined the liberals in ruling that nearly half of Oklahmoa is Indian Reservation, and he wrote the opinion, stating categorically: “We are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.” Yet again: a conservative legal opinion, even if the outcome colors Gorsuch a “liberal”.
— Gay Wedding cakes. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (6/4/18), the majority (7-2) upheld the right of a private business owner (Jack Philipps) to refuse to design one of his products in a particular way (i.e. the right of a baker to refuse to make a wedding cake that celebrates gay marriage). Of the seven justices, however, Gorsuch was the only one to address the issue head on: He argued that the Colorado Civil Rights Commission had failed to recognize that private business owners cannot be compelled to create a product that they object to on religious or moral grounds, which is indeed what the Commission had already acknowledged in its own treatment of three bakers who refused to bake cakes with anti-gay messages on them. The Commission, said Gorsuch, should have found in the Philipps’ favor, just as it had found in favor for the other three bakers. All four bakers were in the same situation. The three bakers refused to sell a cake that denigrated same-sex marriage, just as Jack Philipps refused to sell a cake celebrating same-sex marriage. Most critically: The atheist bakers in the first case were happy to sell to persons of Christian faith, just as the conservative Christian baker in the second case was happy to sell to gay people. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. Gorsuch’s reasoning was correct. Business owners cannot be compelled to artistic design, only to provide equal access to their products. That this needs to be so controversial speaks poorly for the liberal left today. Gorsuch earns a gold star for addressing this case on its own merits.
— Separation of Powers. In Gundy v. United States (6/20/19), the question was: could the attorney general both declare that a pre-SORNA sex offender was required to register under SORNA (Sex Offender Registration and Notification Act) and then prosecute him for having failed to register? This placed the power to make a law and the power to enforce it in the same hands, which is a classic violation of the separation of powers, and a clear delegation of legislative authority. Samuel Alito and the four liberals ruled (5-3) yes, that this was fine, but they were wrong. Gorsuch wrote the dissent, rightly arguing: “It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.” Like Gorsuch, I can’t think of any case in which the Supreme Court ever allowed the chief prosecutor of the United States to write his own criminal code — in other words, to write the criminal law for those he’s going to prosecute.
— Gay & Transgendered Rights. In Bostock v. Clayton County (6/15/20), Gorsuch wrote for the majority (6-3) — himself, the four liberals, and swing justice Roberts — ruling that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Gorsuch argued that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin”. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex — the very practice that Title VII prohibits in all manifestations. His entire reasoning was value-free and hinged solely on what the word “sex” meant to the lawmakers who put it in the Civil Rights Act. This is one of the most conservative rulings ever handed down by the Supreme Court, though people see it as a very liberal one. Liberal politics perhaps, but conservative law. This is what Scalia’s originalist doctrine looks like when properly and consistently applied.
— At his worst: Labor Laws and Worker’s Rights. In Epic Systems Corp. v. Lewis (5/21/18), the conservative majority (5-4) upheld the validity of employment contracts in which employees give up their right to collective litigation against their employer. Gorsuch penned the decision, first framing the issue as a straightforward matter of resolving a potential contradiction between two federal statutes: “It is this Court’s duty to interpret Congress’s statutes as a harmonious whole.” But it’s not the Supreme Court’s duty to do that, but rather to examine each statue on its own constitutional merits. Gorsuch is usually better than this.
— Union agency fees. At least he didn’t write this horrible decision, but he did join it. In Janus v. American Federation of State, County, and Municipal Employees, Council 31 (6/27/18), the conservative majority (5-4) ruled atrociously that the extraction of agency fees from non-consenting public-sector employees violates the First Amendment. So now those who refuse to pay agency fees still reap union privileges. They are able to file grievances and expect the union to represent them, and they get all the pay increases and benefit bumps negotiated for them by the union. They get a free ride. The supposed violation of the First Amendment is absurd: a previous Supreme Court ruling, Abood v. Detroit Board of Education (1977), prohibited agency fees from being used to pay for political activity; the fees could only pay for collective bargaining and other apolitical services the union provides, and which all employees benefit from. Janus was one of the worst Supreme Court rulings of the 21st century (see Kagan’s blistering dissent below in her capsule), and although it wasn’t written by Gorsuch (it was authored by Alito, the worst justice on the court, see his capsule below), it was disappointing to see him fall in line.
2. Elena Kagan. Appointed in 2010 by Barack Obama. Rating: Excellent. The best liberal on the court has no axes to grind and a broad view of the law, and in this respect she’s more like Breyer, and less like crusaders Ginsburg and Sotomayor. She is much smarter than Breyer however. Kagan has allied with the conservatives on the court more frequently than the other liberals, which means nothing in itself, but may just be an indication that she’s truly interested in interpreting the law as a proper judiciary and not as a tribal ideologue. For example, she (and Breyer) joined the five conservatives in favor of Jack Phillips, the baker who had refused to make a cake for a gay couple’s wedding, whereas Ginsburg and Sotomayor were the lone dissenters (see above, under Gorsuch). Another example is when Kagan (and Breyer) joined the five conservatives in allowing a forty-foot-tall cross commemorating soldiers who died in World War I to remain on public land in Maryland. Ginsburg and Sotomayor found the Christian symbolism to be overwhelming and a violation of the establishment clause of the Constitution. Kagan recognized that the cross was acceptable because it dated back to the 1920s and belonged to a venerable line of World War I memorials, whose particular religious significance had faded over time. Kagan has a shrewd intellect — so sharp in fact that it led Harvard law professor Mark Tushnet to predict in 2013, that someday the Supreme Court might be formally led by Chief Justice Roberts, but intellectually led by Justice Kagan. I have a feeling that Neil Gorsuch will be the one taking on that role more and more, but Kagan certainly has the chops for it.
— At her best: Kagan is always in top form, but she is especially good in her dissents. Because she’s so level-headed as a rule, when she does bite, she bites hard, and people listen.
— Union Agency Fees. For example, in Janus v. American Federation of State, County, and Municipal Employees, Council 31 (6/27/18) — which I discussed above under Gorsuch — Kagan went on the full offensive in her dissent against the attack on unions: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. The First Amendment was meant not to undermine but to protect democratic governance, including over the role of public-sector unions.” She was right. I regard the overturning of Abood v. Detroit (1977) as conceptually (if not as drastically) equivalent to the hypothetical overturning of Roe v. Wade. Both were landmark 70s rulings that established important precedents, and have been cited favorably in numerous rulings ever since. But in the minds of those who simply hate the decisions, Abood and Roe were each “poorly reasoned” and inconsistent with fundamental rights (free speech, to life). It is in fact Janus that goes down as one of the most poorly reasoned SCOTUS decisions in the 21st century, and it’s no surprise that the worst justice (Samuel Alito, see #9 below) is the one who authored the opinion.
— Gerrymandering. In Rucho v. Common Cause (6/27/19), the conservative majority (led by Chief Justice Roberts) ruled that partisan gerrymandering claims present political questions beyond the reach of the federal courts. (Gerrymandering is the manipulation of electoral boundaries so as to favor one party or class of citizens over another.) Kagan made another trenchant dissent: “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” As I explain below under Roberts (#5), Rucho most certainly involved a constitutional question; Roberts (and the other conservatives) were just throwing up their hands because they didn’t want to get them dirty.
— Deportation. Kagan is just as good in writing for a majority. In Sessions v. Dimaya (4/17/18), she wrote for the liberals and Gorsuch (5-4), striking down an immigration statute that defined “aggravated felonies” as unconstitutionally vague. The Immigration and Nationality Act (INA) classified these categories, and legal immigrants convicted of those crimes were getting unjustly shafted with deportation.
— Free Speech. In Iancu v. Brunetti (6/24/19), Kagan wrote for a 6-3 victory in striking down a law banning vulgar or scandalous trademarks. Applying that rule, the government had denied a trademark for the name “FUCT,” concluding that it was phonetically equivalent to the past tense or past participle of “fuck”. Kagan argued that the trademark law’s restriction violates the First Amendment because “it disfavors certain ideas”. Note the dissenters in what should have been a 9-0 slam dunk: Roberts, who said that while the First Amendment protects freedom of speech, “it does not require the government to give aid and comfort to those using obscene, vulgar, and profane modes of expression”; and liberals Sotomayor and Breyer, to their shame. So in this very interesting case, four conservatives and two liberals upheld the First Amendment, while one conservative and two liberals did not. This weight of opinion lends credence to the claim that the stronger threats to free speech come more from the left than the right. Obviously the majority was right, and I’m glad that it was at least a liberal who penned the decision.
— At her worst: No objectionable rulings or opinions stand out. Kagan is a top-notch justice.
3. Clarence Thomas. Appointed in 1991 by George H.W. Bush. Rating: Good. He’s an originalist like the deceased Scalia and Scalia’s replacement Gorsuch, but more hard core about that doctrine, with little use for judicial precedent. It’s fair to say that Thomas is universally despised by the left, but over the years I’ve respected him more and more, even though I frequently disagree with his opinions. People fear that his views of limited federal power may undermine the New Deal/Great Society programs of FDR and LBJ, but frankly some of those programs were bad from the start. His intellect is underrated, and so I include a special case study to explain why I hold him in high regard.
— At his best: Damage Claims (x2). Contrary to its reputation, Thomas’ principled conservatism can align with the court’s liberals, and even one-up them. In Wyeth v. Levine (3/4/09), a woman in Vermont injected a drug used to prevent allergies and motion sickness, and complications from the drug led to the amputation of her arm. She sued, but the drug company claimed that because their warning label was acceptable by federal (FDA) standards, that trumps any state regulations which deem the warning label insufficient. Paul Stevens wrote for the majority (6-3), arguing that a manufacturer bears ultimate responsibility for the content of its labels at all times, and that Congress did not intend to preempt state-law failure to warn actions when it created the FDA. Stevens was joined by moderates Kennedy and Souter, and liberals Ginsburg and Breyer, but surprisingly, it was the arch-conservative Thomas who took the most liberal position of all in a separate concurrence. He had no use for invalidating state laws based on perceived conflicts with federal statutes by guessing at intentions not found in the text of statutes. He argued instead that the legal doctrine the drug company relied upon should be tossed out entirely. His siding with the liberals in Wyeth is consistent with his dissent against his fellow conservatives many years before in Geier v. American Honda Motor Company (5/22/00), which involved an injured man suing Honda for its negligence in failing to equip his car with a driver’s side air-bag. The conservative majority played fast and loose with the statutes’ preemption savings clause in order to rule that the safety features of the Honda Accord were in compliance with Federal Vehicle Safety Standard. But preemption was not in the text of the statute, so Thomas joined the liberal dissent in favor of the injured driver.
— Religious Speech in Public Forums. In Good News Club v. Milford Central School (6/11/01), Thomas wrote for the majority (6-3), ruling that a school district cannot prohibit the First Amendment free speech rights of groups wanting access to a school district’s limited public forum. In this case, Milford Central School was trying to discriminate against religious speech by an evangelical Christian club for children, on grounds that its policy prohibited the use of school facilities for “religious purposes”. Thomas rightfully argued (1) that because the district allowed for groups to use school facilities for character or moral development, it could not deny a group access simply because the group sought character development through the figure of Christ; (2) that the district’s Establishment Clause argument didn’t carry weight. The school claimed that it was protecting children from religious indoctrination, but this wasn’t a mandatory classroom setting; the relevant community, according to the Constitution, would be the parents who had to give permission for their children to attend the after-school meetings. Thomas was correct, and it was his ruling that caused my employer (the Nashua Public Library in NH) to change our policy which (throughout the ’80s and ’90s) forbid the booking of meeting rooms for religious groups. I had never understood how we got away with enforcing that policy as a public library.
— The Confederate Flag on License Plates. In Walker v. Texas Division, Sons of Confederate Veterans (6/18/15), Thomas sided with the liberal justices against the other conservatives (5-4), approving Breyer’s opinion that the state of Texas was within its rights to reject a specialty license plate featuring an image of the Confederate flag. (See Breyer’s capsule below.) The inclusion of a particular message on a state-issued license plate implies government endorsement of that message; license plates are government speech, and are thus more easily regulated and subject to content restrictions than private speech under the First Amendment.
— Across the board. Thomas is found at his best, however, not so much in any individual case, but in how he consistently applies rigorous standards of jurisprudence, and this is why I ranked him so high. Even when he ends up on the side that I take to be wrong one, I find myself respecting his reasoning — and very often his reasoning alone apart from the other conservatives with whom he has joined in opinion. I’ll use an example to make this clear, and I’ll choose a case I think he got wrong (since I often do think he is wrong).
Case study for Clarence Thomas: Same-sex Marriage
— In Obergefell v. Hodges (6/26/15), Anthony Kennedy and the liberals rightly struck down same-sex marriage bans, based on the Due Process Clause and Equal Protection Clause of the 14th Amendment. What surprised me was how the dissent turned out. I thought that Roberts would swing and join the majority; that Scalia would dissent, but perhaps with a formidable argument; that Thomas would align with Scalia; and that Alito would make the usual ass of himself. Only Alito was true to form. Roberts not only didn’t swing but made a hypocrite of himself (see his capsule below where I describe the hypocrisy); Scalia had nothing to offer but hollow dismissals. Thomas actually had a very reasonable dissent. He argued that the majority was misapplying the 14th Amendment’s Due-Process Clause — which safeguards life, liberty, and property — because, he says, liberty only includes the protection of individual rights against government interference, not the conferral of government benefits:
“Even assuming that the ‘liberty’ in the Due Process Clause encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”
He then cited evidence indicating that the liberty protected by the clause has been understood in this very limited way — and he is largely correct. But legal critics noted his two oversights. First, he ignored the 14th Amendment’s even more important Equal Protection Clause, which says that no state shall deny to any person within its jurisdiction “the equal protection of the laws”. The issue is simple: state laws that recognize only opposite-sex marriage unconstitutionally discriminate on the basis of gender and/or sexual orientation, and whenever state laws do discriminate like this (on the basis of of race, gender, and/or sexual orientation) that is usually held to be unconstitutional, irrespective of whether the laws in question grant positive benefits or not. State governments can choose whether or not to provide public education, but it’s unconstitutional for them to be selective in their decision; they can’t provide education only to whites, or only to men.
Second, Thomas wasn’t entirely right about the Due Process Clause, because he ignored the contractual nature of marriage, which is key. The right to freedom of contract has long been understood as a liberty protected by the constitution. Freedom includes the right to voluntarily enter into an agreement that restricts one’s future options in exchange for benefits. Employment contracts and marriage contracts are all forms of liberty. A person who is barred from entering into a contractual agreement is less free than the one who can. Marriage is not, as Thomas implies, “just” a matter of getting benefits per se; it’s a matter of entering into a private-party contract.
In my mind, both the Due Process Clause and Equal Protection Clause of the 14th Amendment make same-sex marriage bans unconstitutional. On top of this, there is judicial precedent for striking down marriage bans on the basis of liberty and equity. Loving vs. Virginia invalidated bans on interracial unions in 1967, and Turner vs. Safley did the same for prisoners in 1987. The majority opinion in Obergefell vs. Hodges followed this stream of jurisprudence. It was constitutionally sound.
So why then am I including Thomas’ dissent in Obergefell vs. Hodges as an example of him “at his best”? Because like Kennedy and the liberals, he was using sound jurisprudence, completely unlike his fellow conservative dissenters. Thomas is a sharp Constitutionalist; he seldom engages in hand-waving or special pleading, and almost never lapses into intellectual sloth. (That’s why he’s superior to John Roberts, who tends to be a “hit or miss” justice.) Even when I disagree with Thomas — even when I think there are better Constitutional arguments against him, as I do in Obergefell vs. Hodges — I respect his reasoning. Furthermore, he’s an originalist like Scalia and Gorsuch, which the school of thought I lean towards. That’s why Thomas places third on my list.
— At his worst: Abortion. Just last year Thomas pushed for the Supreme Court justices to revisit its precedent on abortion, and to examine the constitutionality of how states limit access to abortions. He dissented strongly in the case of June Medical Services v. Russo (6/29/20), which dealt with a Louisiana state law requiring abortion doctors to have admission privileges at a state-authorized hospital within 30 miles of the abortion clinic. (Hospital admission privileges are agreements between a doctor and a hospital that allows a patient to go that hospital if they need urgent care.) The law would have effectively limited abortions to a single doctor in the state, since other doctors had no admission privileges or were outside the range. Texas had a similar law, and it was declared unconstitutional by the Supreme Court in Whole Woman’s Health v. Hellerstedt (written by Breyer; see his capsule below). Breyer’s argument was that limiting clinic availability places an unconstitutional burden on women seeking abortions, which is a legal right guaranteed by Roe v. Wade; and he wrote the same thing in June Medical Services v. Russo. The abortion issue is always tricky. While it’s true that the Constitution doesn’t guarantee the right to control one’s body, the Ninth Amendment does imply that people have other rights besides those mentioned in the Bill of Rights. However one feels personally about abortion, the idea of governmental control over women’s reproductive systems doesn’t, in my view, align well with the spirit of liberty celebrated by America’s founding fathers.
4. Ruth Ginsburg. Appointed in 1993 by Bill Clinton. Rating: Good. On one hand, the Notorious RBG has been a crusader for pet causes, especially those against sexual discrimination, and noble as those causes are, the Supreme Court isn’t the place for pushing one’s agenda. Why then do I rank the notorious justice this high, instead of putting her down closer with Sonia Sotomayor? Simple: Ruth Bader Ginsburg has made a critical impact over her 27 years of service, regardless of the motives that drive her, and on whole American jurisprudence has been better for her legal opinions. Let’s run through the highlights.
— At her best: Gender Equality. In United States v. Virginia (6/26/96), she wrote the majority opinion that put beyond doubt that gender equality was a constitutional right, and that “generalizations about ‘the way women are’, estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description”.
— Rights of the Mentally Challenged. In Olmstead v. LC (6/22/99), she wrote the majority opinion that people with mental disabilities have the right to live in the community rather than in institutions.
— The Environment. In Friends of the Earth v. Laidlaw Environmental Services (1/12/00), she made federal courts more accessible for the environment’s sake. The issue involved “standing” — the ability of someone to demonstrate their connection to and harm from a particular law — which is an important concept in the federal courts. If you don’t have standing, you’re shit out of luck, and that happens all the time in environmental lawsuits, where the injury is often done to the land, air, water, or wildlife instead of a person. Ginsburg ruled that plaintiffs don’t need to prove a particular harm, and could instead claim injury from harm done to the “aesthetic and recreational values” of an area. Impressively, she was joined by six justices for a 7-2 ruling.
— Sexual Discrimination. In Ledbetter v. Goodyear Tire & Rubber Company (5/29/07), she wrote a famous dissent, in a case involving a woman who had been paid less than her male coworkers for doing the same job (thousands of less a year), a violation of the Civil Rights Act of 1964. Her employer countered by saying the Civil Rights Act of 1964 also requires discrimination complaints to be filed within 180 days of the violation — so in other words, employers cannot be sued over race or gender pay discrimination if the claims are based on decisions made by the employer more than 180 days ago. Alito supported the employer, and was joined by the other four conservative justices. Ginsburg led and wrote the dissenting opinion, pointing out that the woman couldn’t have possibly filed her complaint sooner because she didn’t know she was being discriminated against at the time: “The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in this case, in small increments; cause to suspect that discrimination is at work develops over time. Comparative pay information, moreover, is often hidden from the employee’s view.” Ginsburg urged Congress to amend the clause of the Civil Rights Act — rightly so, since the logical interpretation of that law was incompatible with its own purpose — which they eventually did in 2009.
— At her worst: Gay Wedding Cakes. Ginsburg has written feeble dissents in the service of leftist causes, a prime example being in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (6/4/18), joined only by Sotomayor, arguing that a business owner should be compelled to create something he doesn’t sell. She manufactured a distinction between the anti-gay Christian customer — who had requested a cake with specific images, statements, and bible verses designed to express rejection of same-sex marriage — and the gay couple — who had simply requested a wedding cake. But that wedding cake would have obviously had writing and/or decorative imagery signaling a gay wedding, for that’s the only reason the conservative Christian baker wouldn’t make it. If it were just a cake with nothing at all to indicate it was a cake for a gay couple, the Christian baker was willing to fill the order. The bottom line is that business owners can’t be compelled to artistic design, only to provide equal access to a commodity. The bakers in both cases — the three who rejected the request for the homophobe, and the one who rejected the request for the gay couple — sold whatever products they made impartially, without discrimination against anyone. Their doors were open to anyone, on a first come first serve basis, without prejudice. (See Gorsuch’s capsule above; he wrote the correct ruling.)
— Parading her Politics. Supreme Court justices are the highest authorities in the land who are supposed to stay out of politics. When Ginsburg demanded that Donald Trump recuse himself from all decisions involving the future of the U.S., that was entirely inappropriate. I don’t care how bad a president is; a justice is out of line making public judgments like this. And unfortunately Ginsburg’s remark shows her true colors. If she’s politically driven enough to pull a stunt like this, then politics may also intrude into her legal opinions, which you can indeed see happening at times; in this sense she’s a lot like like Sotomayor. It’s only because of Ginsburg’s important landmark achievements that I rate her as high as I do.
5. John Roberts. Appointed in 2005 by George W. Bush. Rating: Decent. He’s known as a swing-justice, a moderate conservative, and a much-needed voice of reason to keep the other conservatives in check. There’s some truth to this, but there’s also considerably less to it than meets the eye. While Roberts does take stands of remarkable judicial integrity — sometimes standing alone with the four liberals — he’s also just as likely to duck and tow the party line, with hardly a sliver of intelligent thought to justify his opinions. That makes him a difficult justice to evaluate. I read him as a chief who wants harmony on his court; he aligns with either tribe, sometimes with intellectual rigor, other times just to affirm prior Supreme Court rulings and not on the cases’ own merits. He may be a swing justice, but he’s no Anthony Kennedy, who was a consistently great thinker. Roberts can be described as an excellent jurist on his good days, a dud on his bad ones, and it tends to be a 50/50 hit or miss.
— At his best: Obamacare. National Federation of Independent Business vs. Sebelius (6/28/12) was Roberts’ crowning moment. He shocked conservatives by recognizing that Obamacare was constitutional, as an exercise of Congress’ taxing power. Whatever motives drove him to make this argument and join the liberals (for a 5-4 ruling), he was right. Obamacare is indeed certainly a tax: it’s an amendment to the Internal Revenue Code; it’s calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger; it raises revenue; it serves the general welfare, and is not a criminal penalty in disguise. It fits the definition of a tax to a tee. Even if you oppose Obamacare (I’m not wild about it myself, and Roberts was never a fan), the point is that Obamacare is not unconstitutional. That’s what matters.
— Warrantless Searches in the Digital Age. Carpenter v. United States (6/22/18) was a blockbuster case about how the Fourth Amendment fits into a world of digital surveillance. Analog precedents pointed one way, while digital technologies pointed another. Up until this ruling, third-party doctrine held that any information shared with third parties (phone records, bank records) lost the expectation of privacy and Fourth Amendment protection. The hugest outrage was President Obama’s dragnet collection of internet, email, and phone metadata on every American citizen — an act which obliterated everyone’s privacy fortress. In this case, police obtained cell-site location information (CSLI) from private cell phone company providers about the whereabouts of Timothy Carpenter, who had been suspected of being involved in a series of cell phone store robberies; his personal cell-phone location data provided solid evidence that he was in the vicinity of the crimes. Though the police obtained a court order, Carpenter alleged that they needed a full probable cause warrant. The majority agreed with Carpenter, and Roberts wrote the ruling. It was a landmark Fourth Amendment victory.
— Pandemic crises and church rights. In South Bay United Pentecostal Church v. Newsom (2020), Roberts and the liberal majority (5-4) ruled to uphold restrictions imposed by California’s governor on religious gatherings during the COVID-19 pandemic, denying the injunction sought by a church. The church had accused the governor of violating its religious freedom, by a policy that limits church attendance to 25 percent of building capacity. The church members claimed that because the policy allows certain secular businesses, like grocery stores, to operate under looser guidelines, it discriminates against churches in favor of commercial establishments, thus violating the First Amendment. Roberts argued that while California does limit church attendance, it also applies similar or even harsher restrictions to lectures, concerts, movie showings, spectator sports, and theatrical performances — and these are more analogous to church gatherings than grocery stores. Churches were not being singled out or “persecuted”; they were being treated like other places where people gather closely, and in large groups, for extended periods of time.
— At his worst: Obamacare (Part 2), and then Gay Marriage. Having saved Obamacare in 2012, and rightly, Roberts saved it again in King vs. Burwell (6/25/15), and wrongly this time. The issue was that many states (36) didn’t participate in insurance exchanges that provide eligibility for tax credits; and the language of the Obamacare statute provided eligibility for such credits only to people with state-operated exchanges (provided in 14 states). Roberts claimed that the disputed clause is ambiguous and so should be interpreted in a more lenient manner — and by himself — assuming executive and legislative roles in order to deal with a tension between a statutory text and the statute’s structure and purpose. But in such cases, the rule of law is clear: the government takes priority. According to the Chevron doctrine, when a statute is ambiguous, courts should defer to the interpretation of the implementing agency. Roberts didn’t do that; he arrogated the role to himself. He and the liberal justices were obviously trying to save Obamacare in a quick and dirty way, and Roberts especially didn’t want to undermine his achievement for Obamacare three years prior. What makes him look twice as bad is his dissent only a day later in Obergefell vs. Hodges (6/26/15), when he sided with the three conservative justices against gay marriage precisely on grounds that “the supreme court is not a legislature”. This was the pot calling the kettle black — and the kettle, for that matter, wasn’t as black as Roberts’ thought: the question of gay marriage involved the logical extension of constitutional rights, liberties protected by the Fourteenth Amendment’s Due Process Clause, and basic discrimination issues related to the Equal Protection Clause. The Supreme Court has long held that the right to marry is protected by the constitution — as in Loving vs. Virginia (which invalidated bans on interracial unions) and Turner vs. Safley (which held that prisoners could not be denied the right to marry). Roberts got his cases backwards. By rights, he should have dissented in Thursday’s Obamacare decision, and said yes on Friday to the constitutionality of gay marriage.
— Gerrymandering. In Rucho v. Common Cause (6/27/19), Roberts ruled (in a 5-4 decision) that partisan gerrymandering claims involve political questions beyond the reach of the federal courts, which is an outrageous cop-out. The Supreme Court certainly had jurisdiction here. Gerrymandering cuts to the heart of the constitutional rights of citizens. Kagan blasted Roberts (and the majority) in her trenchant dissent, as I quoted above in her capsule. This horrible ruling is actually a typical (if extreme) example of Roberts’ spineless side. If he’s willing to get his hands dirty in cases like (the first) Obamacare and pandemic crises, he shows an astonishing intellectual apathy in just as many other cases.
6. Stephen Breyer. Appointed in 1994 by Bill Clinton. Rating: Decent. Of all the justices, Breyer is sort of just there. He’s not a bad justice, but not especially noteworthy. He’s pragmatic above all, with no axes to grind, and that in itself is good. But he opposes originalism in favor of a more dynamic view of the law, whereas I’m much more originalist. Still, he’s a fair-minded and non-partisan thinker.
— At his best: Voter Standing. In Federal Election Commission v. Akins (6/1/98), Breyer wrote for the majority (6-3), ruling that voters have the legal standing to challenge the Federal Election Commission’s decisions regarding political committees. “Standing” cases sound a bit dry and boring, but they are consequential, and Breyer wrote a good piece here.
— The Confederate Flag on License Plates. In Walker v. Texas Division, Sons of Confederate Veterans (6/18/15), the four liberals and Clarence Thomas ruled that license plates are government speech and are thus more easily regulated and subject to content restrictions than private speech under the First Amendment. Breyer wrote for the majority, arguing that the inclusion of a particular message on a state-issued license plate implies government endorsement of that message, and so the state is within its rights to reject such specialty license plates — in this case the image of a Confederate flag.
—Abortion Providers (x2). In Whole Woman’s Health v. Hellerstedt (6/27/16), the court ruled on the biggest abortion case since Roe v. Wade, and Breyer wrote for the majority (5-3), arguing that Texas cannot create undue burdens on women who want abortions. The Texas bill imposed strict restrictions on abortion providers, including a requirement that doctors performing procedures have admitting privileges at nearby hospitals, and that clinics meet the same standards as outpatient surgical centers. (Hospital admission privileges are agreements between a doctor and a hospital that allows a patient to go that hospital if they need urgent care.) June Medical Services v. Russo (6/29/20) was a nearly identical case, with Louisiana being the offender this time, requiring abortion doctors to have admitting privileges that are difficult to obtain. As before Breyer wrote for the plurality, ruling that Louisiana was making it unreasonably hard for women to get abortions, which is a constitutional right guaranteed by Roe v. Wade.
— At his worst: Though I am just as often on the other side of Breyer’s opinions as for them, none of his major opinions stick out as exceptionally bad.
7. Brett Kavanagh. Appointed in 2018 by Donald Trump. Rating: Poor. No, I’m not ranking him low for the skeletons in his high-school closet. That was a stupid inquisition. I rank Kavanagh low because he’s not a particularly good justice. But he did write one piece of excellence.
— At his best: Private vs. Public Spheres of Influence. In the important case of Manhattan Community Access Corp. v. Halleck (6/17/19), Kavanagh wrote for the conservative majority (5-4), ruling that Manhattan Community Access, a private corporation operating public access channels, is not a state/governmental actor subject to the First Amendment; and thus the corporation was within its rights to suspend contributors from using the station’s public services and facilities. Kavanagh’s opinion is an important one, because it bears on questions of huge corporations like Facebook and Youtube when they police the world and ban users (like Alex Jones) for offensive material; or when they ban users, or delete comments or videos, even on the public/governmental pages they are hosting. Facebook, for example, hosts many public library pages. As governmental employees, the librarians cannot censor hate speech comments on their FB pages. But according to this Supreme Court ruling, the Facebook execs are within their rights to step in and do so if they wish. Much as I hate admitting it, Kavanagh is bang on the money. Personally, I don’t approve corporations like Facebook and Youtube de-platforming others, and trying to police their functional equivalent of a digital town hall. (Facebook exercises more control over the public discourse in the U.S. today than any government ever dreamed of having.) If I were the CEO of any big-tech companies like these, I would not exercise my de-platforming rights. But I would still insist on having those rights. The four liberal justices had their hearts in the right place but weren’t thinking it through. Had this decision gone the liberal way, it would have set a bad precedent in blurring the separation of private and governmental spheres. It would have tied the hands of business owners from making decisions they should be allowed to make. Kavanagh is to be commended for this important ruling.
— At his worst: Church rights during pandemic. I covered this case under Roberts’ capsule above. If South Bay United Pentecostal Church v. Newsom (2020) shows the chief justice at his best, it shows Kavanagh at his worst. Roberts and the liberal majority (5-4) rightly denied that churches were being discriminated against. While California did limit church attendance during the COVID-19 pandemic, the state also applied similar or even harsher restrictions to lectures, concerts, movie showings, spectator sports, and theatrical performances. The churches were being treated fairly and consistently. Kavanaugh dissented, however, assuming that churches are more like grocery stores than concerts, and thus that churches were being unfairly persecuted. It’s honestly one of the most laughable displays of pseudo-jurisprudence I’ve seen from the hand of a supreme court justice.
8. Sonia Sotomayor. Appointed in 2009 by Barack Obama. Rating: Bad. The two bottom slots go to the justices who rule from their hearts more than their heads — the worst liability for a Supreme Court justice. In the case of Sonia Sotomayor, she’s had a passion for the rights of criminal defendants, and for reforming criminal justice, especially as it relates to police and prosecutor misconduct. This passion has extended into immigration issues, where she perceives gross injustices and wants to provide remedies in ways the Constitution isn’t equipped for.
— At her best: Nothing to speak of. She has written some decent opinions, but nothing that distinguishes her exceptionally.
— At her worst: Travel Suspensions. In Trump v. Hawaii (6/26/18), the conservative majority ruled (5-4) that President Trump lawfully exercised the broad discretion granted to him to suspend the entry of aliens from seven Muslim countries into the United States — countries construed to be jihadist hotspots. I personally feel this was a needless and ineffective effort on Trump’s part, mostly because the suspensions (often incorrectly called “bans”) didn’t include the critical country of Saudia Arabia, which spends millions of dollars promoting jihadist warfare all over the world, and where most of the 9/11 hijackers came from. All Trump did was lift a template from an executive order signed by Barack Obama against the same nations two years before: the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, listing Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, and North Korea. (Obama’s order had been as needless as Trump’s.) Nonetheless, the conservative majority was correct to uphold Trump’s order. The Supreme Court has no power to second-guess the president’s executive decisions, no matter how disagreeable, only to decide if the president’s decisions are constitutional or not. Aliens who have never set foot on U.S. soil have no constitutional rights, and nor should they. While the Constitution prohibits discrimination in the issuing of visas, it does not limit the president’s authority in any way to block the entry of nationals from certain places — just as several presidents have done before Trump. As for the liberal response: Breyer wrote one dissenting opinion (joined by Kagan), basically agreeing with the conservative majority that the case should be remanded to the lower court for further review, while maintaining that the suspensions should be lifted in the meantime. It was Sotomayor who wrote the scathing dissent (joined by Ginsburg), completely critical of the majority’s opinion:
“The United States of America is a nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”
But the issue had nothing to do with a “total and complete shutdown of Muslims entering the United States”; that was Trump’s rhetoric during his presidential campaign. The suspensions were temporary restrictions imposed on select countries for purposes of national security, which the chief executive has every right to do as he sees fit. Sotomayor went further off the cliff in comparing the majority’s decision to the 1944 ruling on Japanese detention during World War II (Korematsu v. United States), charging that Trump was repeating FDR’s sins, “blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security”. Even if Trump’s travel suspensions were misguided (as I think they were), they were certainly not comparable to the internment of Japanese American citizens, which was a blatantly unconstitutional act. Sotomayor’s dissent was incompetent at the most basic levels.
— Illegal Immigrant Children. Two years later Sotomayor again flaunted her incompetence on an immigration issue. In Department of Homeland Security v. Regents of the University of California (6/18/20), Roberts and the liberals ruled (5-4) that the Trump administration could not immediately carry out its plan to shut down DACA, the Deferred Action for Childhood Arrivals program, which has allowed 800,000 children to avoid deportation and remain in the U.S. This was a toothless ruling, because all it did was scold the Trump for not filling out his paperwork. As Roberts admitted, “We do not decide whether DACA or its rescission are sound policies” — for indeed, an administration has every right to end a program like DACA, and there’s nothing the Supreme Court can do to gainsay it. But the administration has to follow the right procedures, which it didn’t do in this case. According to Roberts’ ruling the Trump administration could simply issue a new memorandum, stating that it is ending DACA, as long as the memo provides an explanation for every policy change entailed by ending DACA. So even if Roberts and the liberals were technically right, the conservative dissenters were more profoundly right, for as Thomas wrote, the majority were futilely trying “to avoid a politically controversial but legally correct decision”. Sotomayor, on the other hand, believed that Roberts and her fellow liberals hadn’t gone far enough, and that they were sidestepping the heart of the issue by focusing on the technicality. In her separate dissent, she claimed that the Trump’s history of racist comments about Mexican immigrants provided a vital legal context necessary to judge his attempt to end DACA:
“The words of the president help to create the strong perception that the rescission decision was contaminated by impermissible discriminatory animus”.
But that’s irrelevant, and it’s no surprise that the other liberals (even Ginsburg) rejected Sotomayor’s line of reasoning. Even if Trump’s decision to end DACA was motivated by anti-Latino bigotry, it doesn’t change the fact that a president has full executive rights to end a program like DACA as he sees fit. Personally I approve DACA; I oppose open borders and illegal immigration, but not to the extent of deporting those who came here as kids and don’t know any other way of life. But my personal feelings do not bestow on illegal immigrants constitutional rights. Nor do Sonia Sotomayor’s.
— In general. With no opinions that distinguish her except bad ones, Sotomayor doesn’t earn her seat on the high court. She couldn’t even uphold the right to use the F-word, dissenting in Iancu v. Brunetti (see Kagan’s capsule above). So much for the First Amendment on the most basic level.
9. Samuel Alito. Appointed in 2006 by George W. Bush. Rating: Disaster. He’s the most partisan justice on the court, and by far the worst. Notice I did not say he was the most conservative. (Clarence Thomas has that honor, followed by Gorsuch and Kavanagh.) Alito is blatantly partisan, rather, and that’s a capital offense for a Supreme Court judiciary. And like Sotomayor he rules from his heart — perverting or ignoring the law for sake of personal feelings. Whether the issue is free speech, public sector unions, women whose employers object to birth control, workers who are sexually or racially harassed by their supervisors, Samuel Goddamn Alito has made an art of reading authorities that cut sharply against his position, and then writing a legal opinion that passes off those authorities as if they actually support his argument. His famous Hobby Lobby opinion (2014) being the classic case in point: Alito ruled that companies are free to deny their employees health coverage of contraception if the company’s owner has religious objections to birth control. Decades of legal precedents establishing that religious liberty claims can’t be used to diminish the rights of third parties — especially in contexts of employment — were co-opted by Alito and pressed into the exact opposite service. He’s the worst Supreme Court justice who has served in my lifetime. Unlike the other conservatives with whom he has served — Antonin Scalia, Anthony Kennedy, Clarence Thomas, John Roberts, Neil Gorsuch — Alito is a 100% committed partisan, and has never broken with his fellow conservatives to join the liberals in any major case, save one (Gundy v. United States, which he and the liberals were wrong about in any case, when they allowed the attorney general to write his own criminal code; Gorusch wrote a proper dissent, as I explained under his capsule).
— At his best: There is no “best” from Alito. He’s a disaster.
— At his worst: Alito screws up everywhere, but let’s stick with The First Amendment, for which he has no use. He’s so bothered by the negative emotive power of speech — the power of speech to distress or upset people — that he is willing to render void the most basic of American rights. In Snyder v. Phelps (2011), every one of his colleagues ruled that homophobic hate paraders had the right to picket military funerals: a slam-dunk 8-1 decision that should have been 9-0. The four liberals and four conservatives were as one: as long as the Westboro Baptists weren’t trespassing, kept the right distance, weren’t violently disruptive, and followed police instructions, they had every right to spew their hateful bile. If there was any possible dissent here, I would have expected it from Sotomayor; hard leftists like her often imagine that hate speech shouldn’t be protected by the First Amendment. But even she got this right. It was the conservative Alito who went to bat for the gay man’s family: the picketers, he wrote, were not really engaging in free speech, but assault (!): their homophobia had “brutally attacked” the dead marine and his family as part of a “well-practiced strategy for attracting public attention.” Seriously, this from a Supreme Court justice.
— It gets worse. In The United States v. Alvarez (2012), the Court (in a 6-3 decision) struck down a portion of the Stolen Valor Act, a federal law that criminalized false statements about having a military medal. The majority rightly argued that the government has no free-floating power to punish lies. Alito spearheaded the dissent, once again arguing that the issue wasn’t about free speech but assault (!): lying about military awards amounted to an assault on the government, “undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families”.
— Even before the above two cases, Alito pulled “exceptions” to free speech out of his ass. In United States v. Stevens (2010), the landslide majority (8-1) ruled that a federal statute criminalizing the commercial production, sale, or possession of depictions of cruelty to animals, was a violation of free speech. It’s a no-brainer; the four liberals and four conservatives were obviously right, not only on the principle of free speech, but sheer practicality: TV-shows portraying the hunting of animals would have to logically be criminalized according to the federal statute. And again, I would have expected a lone dissent from Sotomayor, if anyone, not the conservative Alito, who sidestepped the question of legal expression (which is what matters) and focused instead on the repulsive nature of that expression, as he personally found it.
— These three opinions alone would qualify Alito as one of the worst justices in history, but his entire career on the court shows him at his worst. His attack on unions and overturning of Abood v. Detroit (1977) — see Janus v. American Federation of State, County, and Municipal Employees, Council 31 (6/27/18), under Elena Kagan’s capsule — is one of his recent travesties (Kagan’s blistering dissent goes down as one of the finest rejoinders to judicial idiocy). Practically everything of his that I read makes me cringe in embarrassment for him, and in disgust for his presence on the court.