Comment: Next president could shift balance of 3-3-3 high court

By Noah Feldman \ Bloomberg Opinion

“All Gaul is divided into three parts,” Julius Caesar famously wrote. The same is now clearly true of the Supreme Court. And like Gaul before Caesar, the three parts are all weakened by their mutual struggle.

We already knew about the court’s three-justice liberal faction, consisting of justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson. What’s new is a clear split among the court’s conservatives: the arch-conservative group of justices including Clarence Thomas, Samuel Alito and Neil Gorsuch, and the centrist-conservative group composed of Chief Justice John Roberts and justices Amy Coney Barrett and Brett Kavanaugh.

In the past term, that middle faction was clearly in control of the court. It joined the arch-conservatives to give former President Donald Trump near-total criminal immunity for actions committed in office; overturn the Chevron doctrine; strike down a ban on bump stocks; weaken protections against racial gerrymandering; and rebuff an attempt to create some rights for the homeless. All were 6-3 decisions.

Yet the same centrist faction also joined with Kagan and Sotomayor to restore, at least for now, emergency access to abortion in Idaho. And the centrists joined with with all three liberals to permit the Biden administration to jawbone social media platforms to remove content that violates their terms of service. The liberals and the centrists united again to strike down Texas and Florida laws limiting the free speech rights of social media platforms. (The ultraconservatives technically concurred in the second social media case, but their concurrence was a dissent on the merits.)

To understand what’s going on with Roberts, Kavanaugh and Barrett is to gain some insight into the evolving nature of the conservative constitutional revolution at the court.

For decades, legal conservatives — under the intellectual influence of the late Justice Antonin Scalia and the institutional influence of the Federalist Society — have been pursuing some very specific goals. They wanted to overturn Roe v. Wade. (Check.) They wanted to adopt an aggressive interpretation of the Second Amendment protection of the right to bear arms. (Check). They wanted to end affirmative action. (Check). They wanted to overturn the classic tests of the establishment of religion. (Check) And they wanted to overturn the principle of Chevron deference, which told courts to defer to reasonable agency interpretations of federal law. (Check and mate.)

Those goals have now been achieved, and the conservative centrists have been on board for those decisions. Loper Bright v. Raimondo, the case that overturned Chevron, was the last big ticket item on the conservative wish-list. The Trump immunity decision was just a bonus for conservatives who favor executive power (and might favor Trump, too).

When it comes to implementing the revolution, however, there’s a split between the court’s six conservatives, who all have Federalist Society ties. The court’s arch-conservatives want to step on the gas. The conservative centrists want to pause and take stock. The centrists don’t want the revolution to turn into a free-for-all, in which all well-established doctrines are open to being reversed just because the extreme conservatives don’t like the outcomes that would be reached by following existing law.

That’s one reason the centrists didn’t take the bait offered by conservative lower courts and ban mifepristone, a medication used for miscarriages and abortions. It’s why, in the Rahimi decision, they acknowledged that it would be genuinely crazy to allow people with domestic violence protection orders against them to buy guns.

And it’s why the court’s center bloc joined Justice Elena Kagan’s opinion in the NetChoice case, treating social media platforms as possessing free speech rights. It’s why they joined Barrett’s majority opinion in the so-called jawboning case about the Biden administration’s efforts to get platforms to remove social media misinformation.

While the extreme conservatives seemed happy to withdraw First Amendment protections from the platforms in NetChoice while ramping up the free speech rights of platform users in the jawboning case, those positions required substantial rewriting of existing free-speech doctrine. But the modern conservative legal movement has pretty consistently been in favor of strong free-speech protections — and the conservative centrists don’t want the edifice of free-speech doctrine knocked down.

Barrett, in particular, emerged this term as the most thoughtful and least predictable of the conservative centrists. In addition to her majority opinion on jawboning, she wrote a free-speech concurrence in a trademark case that amounted to a pointed attack on the conservatives’ newly favored “history and tradition” test; an opinion that was joined by the court’s liberal faction.

She also defected from the conservatives in the case about using the Sarbanes-Oxley Act to prosecute Jan. 6 rioters — and got votes from Kagan and Sotomayor for her dissent. And she’s done it all without alienating her colleagues, it would seem.

Remarkably, Barrett may be in the process of becoming the closest thing to a swing vote on the current court: someone who genuinely listens to the arguments, thinks about the law, and will come out where her conscience and her legal judgments take her. A court with a faithful dévotée of Scalia as its swing vote is a conservative court indeed.

Before liberals despair entirely of the Supreme Court for at least a generation, they should keep in mind that things can change fast. Had Hillary Clinton won the 2016 presidential election, the bench would now have six liberals and three conservatives.

That’s important to remember now. If Trump is elected in November, he will probably get to replace the 76-year-old Thomas and the 74-year-old Alito, consolidating conservative control for the long term. And in a second term, he probably wouldn’t nominate mainstream Federalist Society conservatives but more radical judges.

However, if a Democrat is elected in 2024, that person might just get to replace two conservatives, too, which would result in a court with five liberals.

As the conservative revolution crests, it begins to be possible to imagine what is going to be on the other side of it. Whoever becomes the next president could tip the balance of the court in one direction; or the other.