By the end of the summer, the Supreme Court had a vacancy. The president nominated the jurist he “judged most qualified” to serve on the court, but thanks to the vacancy’s timing and the president’s urgency to fill the seat in time to hear cases in the court’s fall term, there was little time for Senate hearings or input. As if the ramrod appointment was not insult enough, plenty of senatorial feathers were ruffled by partisan speeches the nominee had given on sensitive issues likely to be heard by the court.
This is a sad, familiar story of the age — a story about increasing politicization and partisanship on the Supreme Court. It is the story of how President George Washington nominated John Rutledge during a Senate recess to serve as the second chief justice of the United States, following John Jay’s retirement in the summer of 1795. Chief Justice Rutledge served on the court for a few months during recess, but the Senate quickly rejected the nomination once it reconvened in December 1795.
The point of the Rutledge affair is not that everything is fine and normal nowadays, nor is it pure SCOTUS trivia for your D.C. friends. For our purposes, the Rutledge lesson is more that water eventually finds its level.
Partisanship always seems unprecedented. At least, it must have felt that way when John Adams and Thomas Jefferson fell out of speaking terms, or when Federalists passed the Sedition Act of 1798, or when Franklin Roosevelt tried to lard up the Supreme Court with sycophants. But while the court goes through generational phases (e.g., the New Deal-era expansion of interstate commerce power or the Warren court expansion of individual rights), newly appointed justices often revert somewhat to the mean. The rule of law, after all, embraces stability, and with the exception of an occasional Clarence Thomas, it seems much easier for attorneys and academics to call for radical change in a classroom or at a Federalist Society conference than in a Supreme Court opinion.
That brings us to Justice Amy Coney Barrett. If a nominee was ever poised to fit the mold of Justice Clarence Thomas as an unflappable conservative, unencumbered by thorny, pragmatic issues and precedent, it would be Justice Barrett. She in whom “the dogma lives loudly,” and in whom partisans vested their literal hopes and fears. But in a closely watched religious liberty case this month, Justice Barrett again opted for a careful and narrow approach over the sweeping and ideological one.
In a world that lives on caricature alone, that might be shocking. But in a world where one actually considered what Justice Barrett has been saying for years, it should be less surprising. She is, after all, the one who wrote that justices should evaluate “whether duty strongly counsels a minimalist approach that avoids questioning precedent wherever possible.”
The divide on the court is increasingly defined not only by left-right ideology, but by temperaments toward institutionalism, incrementalism, and reform. In much the same way that a whole industry of banner ad-laden online quizzes will tell you that political ideology does not sort neatly on a left-right spectrum, judicial philosophies are multidimensional. It’s not enough to figure out whether you paste Justice Barrett’s headshot to the left or the right of Justice Alito in your infographic. You also need to consider questions about judicial intervention or deference, following or changing precedent, the scope of judicial or congressional authority, and pointy-headed legal issues such as statutory interpretation. Interest groups have a hard time cutting ads about this stuff, but it decides cases far more often than a president who nominated a judge.
In the case of Justice Barrett, we can all play the hits from her confirmation hearing last year. She was allegedly a People of Praise theocrat, a real-life proponent of a Margaret Atwood dystopia. That sure sounds like the type of person who would vote to overturn Employment Division v. Smith, an opinion by Justice Antonin Scalia that held the First Amendment does not exempt religious practice from “generally applicable” laws, so long as the laws are valid and neutral.
The Smith decision spurred Congress to pass the then-bipartisan Religious Freedom Restoration Act in 1993. The law largely undid Smith’s practical effect at the national level. Yet Smith continues to needle religious groups and certain conservatives who think, not unreasonably, that it neuters the First Amendment’s free exercise clause.
Fulton v. City of Philadelphia was the real first chance for those same groups to enjoy the shock and awe of a 6-3 conservative majority determination on this issue of religious exemptions. The facts of the case were relatively simple. Philadelphia refused to contract with a Catholic foster care agency because the agency did not certify same-sex couples for religious reasons, the agency lawyered up to claim a First Amendment violation, and the case reached the Supreme Court.
The opinion released, however, did not involve a 6-3 split about the free exercise of religion and social equality for same-sex couples. Instead, Chief Justice Roberts drafted a narrow opinion for a 9-0 court, concluding that Philadelphia’s law was not “generally applicable” because it gave a commissioner power to make exceptions to the rules. This, the court held, meant that Smith did not apply, and its validity was not in question. Consequently, the court applied the most stringent level of review, known as strict scrutiny, and found that Philadelphia violated the free exercise clause because it lacked a compelling reason to deny that exemption to the Catholic agency.
Justice Alito drafted a lengthy concurrence, one that looks like it may have begun as a majority opinion, in which he was joined by Justices Thomas and Gorsuch. He agreed with the end result that Philadelphia violated the First Amendment but argued that the court should go further and overrule Smith. Justice Alito listed a variety of ways that “generally applicable,” seemingly neutral laws could cripple core religious expression without being unconstitutional under Smith. For example, several European countries ban the slaughter of conscious animals, which runs against religious requirements for preparing kosher and halal food, and a 2011 San Francisco ballot initiative sought to ban infant circumcision, which would conflict with Jewish religious practices as well. Either of these prohibitions, Alito pointed out, would pass muster under Smith.
Justice Barrett, joined by Justice Kavanaugh, wrote separately to concur with Chief Justice Roberts. She added that although the historical record is mostly “silent” about whether the original public meaning of the free exercise clause included religious exemptions, she finds Justice Alito’s textual argument somewhat compelling. Nonetheless, she raised practical concerns — for example, what would replace Smith? Maybe all free exercise claims would receive the strictest scrutiny from courts, but that would be less nuanced than other First Amendment doctrines such as free speech and assembly. Justice Breyer also joined Barrett’s concurrence, except for the bit about finding Alito’s textual argument compelling.
The question is why Justices Barrett and Kavanaugh, both of whom are Catholic, stopped short of joining their fellow conservatives. Maybe, like some originalism scholars, they think Scalia was actually correct in Smith. Or they might find the pragmatic concerns of overturning it insurmountable. Or they might sincerely think that Fulton did not need to consider the issue, but it is open in the future. There are at least two more petitions pending at the Supreme Court seeking to overturn Smith, so this case hardly ends the question.
For any of these reasons, or totally different ones, some conservative justices were not as eager as others to change that law. That is the kind of revelation that affects future cases. Chief Justice Roberts has famously led his court to avoid bold decisions often when narrow rulings will do the trick, including in past cases about religious exemptions. This is not a universal rule, of course: Justice Roberts has voted to overturn major precedents, and no doubt Justice Barrett will do the same.
Still, if Justices Barrett and Kavanaugh share even a slight bent more toward incrementalism than Justices Thomas and Alito, that could prove as powerful as Barrett’s scholarship on originalism. There is a certain Kirkian sensibility to this minimalism — if society changes slowly, then the courts inch along with it; they don’t seesaw back and forth like the changing control of Congress. There is also, of course, a growing frustration among conservatives who see this incrementalism less as institutionalism and more as squishiness. That cohort includes at least one sitting federal circuit judge, driven to the verge of sackcloth and ashes to plead in public, “Please, God, no more [Justice David] Souters.”
But no matter the background, nearly everyone overestimates their confidence in how new nominees will vote on the Supreme Court. Even Chief Justice Rutledge’s predecessor, John Jay, surprised George Washington by declining to offer an advisory opinion in the neutrality crisis of 1793, despite the first president’s assumption that it would be a role of the nascent court. Justice Barrett’s nomination was a “nail in the coffin of the ACA,” we were told, until she voted to reject the first collateral attack against the Affordable Care Act she heard at the court. Perhaps she will vote to overturn Roe because she is pro-life. But she is also anti-death penalty yet has not intervened to stop executions since her confirmation. If she feels obligated to avoid confronting precedent when possible, would she actually confront Roe directly, or instead recast a discussion of what constitutes an “undue burden” on abortion rights under subsequent cases? It remains to be seen.
Regardless of how the justices answer future issues, they have told us the type of questions to consider. Which justices are “conservative” might be one of the first questions, but it is hardly the last.
William Simpson is an attorney and writer in Washington, D.C., who frequently litigates constitutional and administrative law issues.
