Early divisions signal bitter internal conflicts as Supreme Court turns toward final decisions

By: CNN

Posted: Jun 25, 2024 6:28 AM CDT

Bill Hennessy via CNN Newsource

By John Fritze

(CNN) — From a blockbuster Second Amendment decision to a more technical case about retaliatory arrests, sharp disagreements have emerged on the Supreme Court over the reasoning of recent rulings – divisions that could signal an especially fiery end to the current term.

Even as the court is sometimes finding wider-than-expected majorities for relatively limited outcomes, the nine justices are regularly in conflict over the meaning of decisions. The quarreling over doctrine and rationale may partly explain why so many major cases remain before the court’s term is expected to end as soon as Friday.

That dynamic was particularly notable last week in a blockbuster decision on guns, which drew eight justices into the majority but five separate concurrences bickering over the court’s methodology. A number of lower-profile cases have also sparked deep doctrinal divisions, even when the final vote count is lopsided.

“It does seem, at least anecdotally, unusual to have this many separate opinions in cases with relatively lower stakes,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “Only the justices know why, but it certainly at least suggests that the court is having trouble reaching consensus, even in contexts in which historically it was better able to do so.”

In an important ruling last week dealing with a Trump-era repatriation tax, several justices dinged the majority for not answering the question the court initially agreed to resolve. Meanwhile, in a decision about a former city councilwoman who claimed she was wrongly arrested, Justice Brett Kavanaugh appeared to be so exasperated that he wrote the judicial equivalent of a shrug emoji into a concurrence.

“We are where we are,” Kavanaugh wrote, adding that the court’s decision to grant the case seemed, in retrospect, “ill-advised.”

The court is rounding out a contentious term with more than a dozen cases still outstanding, including those dealing with emergency abortions, the power of federal agencies to approve regulations and whether former President Donald Trump may claim immunity from special counsel Jack Smith’s election subversion charges. Additional opinions are expected Wednesday, Thursday and Friday.

So far, the court has handed down five decisions in which the vote split along ideological lines, with the six conservatives lining up in the majority against the three liberals. That’s the same number of 6-3 ideological outcomes as the entire 2022-2023 term.

The Supreme Court earlier this month tossed out an appeal from anti-abortion doctors challenging expanded access to the abortion pill mifepristone. In March, it ruled that states couldn’t yank Trump off presidential ballots because of his actions before the riot at the US Capitol on January 6, 2021. On Friday, the court upheld a federal law barring Americans who are the subject of domestic violence restraining orders from owning guns.

While those decisions and others have put conservative and liberal justices together in majorities, they also have drawn especially sharp concurrences, including some that at times have read strikingly like dissents.

Disagreements among Trump nominees

Seven justices joined the court’s bottom-line conclusion on Thursday in Moore v. US to uphold a Trump-era tax levied on shareholders on undistributed profits accrued between 1986 and the end of 2017 by certain foreign corporations. But Justices Amy Coney Barrett and Samuel Alito declined to join the majority opinion by Kavanaugh.

Instead, they wrote separately to pick apart his approach.

“I think the issue is more complex than the court lets on,” Barrett wrote.

The majority’s conclusion “might be right,” she added, but its “reasons for saying so are wrong.”

The Supreme Court is working at a remarkably slow pace this year given its relatively small case load, said Aziz Huq, a University of Chicago law professor. But, Huq said, “this hasn’t led to more clarity in the law.”

“It is striking that there’s so much disagreement,” he said. “Cases such as Moore illustrate this, which divided the justices in a quite extraordinary way.”

In last week’s Second Amendment decision, seven justices joined Chief Justice John Roberts’ opinion upholding the law intended to protect the victims of domestic violence. But the opinion also prompted five separate concurring opinions, including from the three conservative justices nominated by Trump.

Those concurrences exposed deep divisions over the court’s use of history to determine whether gun laws are constitutional. In a major decision two years ago, New York State Rifle & Pistol Association v. Bruen, the court’s conservatives ruled that in order to survive constitutional scrutiny, gun regulations must be “consistent with this nation’s historical tradition.”

In its ruling last week, the court said that a federal law allowing the government to disarm Americans who are the subject of certain domestic violence restraining orders met that standard.

Kavanaugh wrote that using history to decide Second Amendment disputes is a far better approach than trying to make judgements about the worth of gun restrictions. A non-historical review, he wrote, is “antithetical to the principle that judges must act like umpires. It turns judges into players.”

Justice Neil Gorsuch chimed in separately to agree, asserting that there wasn’t anything “remotely unusual” about looking to history to help decide cases.

“Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow,” he wrote.

But the liberal justices took issue with the conservatives’ position of a history-based approach to the Second Amendment, noting that the nation’s history has often been conflicted and not inclusive.

The rule of law, Justice Ketanji Brown Jackson wrote, “thrives on legal standards that foster stability, facilitate consistency, and promote predictability. So far, Bruen’s history-focused test ticks none of those boxes.”

Alito pushes for more protection of police in arrest retaliation case

In another decision last week, the court allowed a Texas woman who served on a small-town council to continue a lawsuit against her mayor after she was arrested for what she claims were political reasons. The unsigned opinion technically drew only one public dissent, from Justice Clarence Thomas.

But in three concurrences written by both conservatives and liberals, it became clear that the justices were all over the map.

Alito wrote a lengthy concurrence taking issue with the fact that the court declined to address one of the key issues raised by the case: Whether there should be a different standard for considering retaliatory arrests when it’s not a snap-judgement made by a police officer. Police are often afforded the benefit of the doubt in the law when they are making potentially life-and-death decisions quickly.

In the case of the Texas woman, Sylvia Gonzalez, police had investigated allegations that she stole a document at a public meeting for weeks before arresting her. Alito said the timing shouldn’t have made a difference.

But the court’s unsigned opinion declined to weigh into the debate.

“The court today reserves judgment on this issue,” Alito wrote. “I disagree with this course.”

Earlier this month, the court unanimously rejected a political activist’s attempt to trademark the phrase “Trump Too Small,” a reference to a lewd exchange between Trump and Florida GOP Sen. Marco Rubio during the 2016 Republican presidential primary. Even though all nine justices agreed on the conclusion, six splintered off into concurrences.

Among them, Justice Sonia Sotomayor slammed the court’s majority opinion for its reliance on history to decide the trademark dispute.

That approach, she said, had allowed the court’s conservatives to choose a version of history that fits their desired outcome, like a person “entering a crowded cocktail party and looking over everyone’s heads to find your friends.”

“I am reluctant,” she added, “to go further down this precipice of looking for questionable historical analogues to resolve the constitutionality of Congress’s legislation.”