Foreword - The October 2018 Term: Leaving Things Undecided—and Non-Partisan—For Now

We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.[1]

– Chief Justice John Roberts

The October 2018 Term of the Supreme Court of the United States was not one for the history books, and that was likely, at least in part, by design. The Court appeared self-consciously to avoid taking cases that would have further propelled it into the national spotlight soon after the uncommonly divisive confirmation hearings of Justice Brett Kavanaugh. During those hearings, Justice Kavanaugh was perceived by many to have behaved like a political partisan in response to explosive sexual assault allegations dating back to high school that Dr. Christine Blasey Ford made against him.[2] The hearings likely raised concerns among at least some of the justices—especially Chief Justice John Roberts—about preserving the Court’s reputation as not just another partisan institution.

The Term also featured a public disagreement between Chief Justice Roberts and President Donald Trump over whether there were “Obama judges or Trump judges, Bush judges or Clinton judges” in the federal judiciary.[3] One way to adjudicate that disagreement, at least as far as the last Term is concerned, is to look at how the cases fractured the Court: How often, and in which cases (some are more important than others), were the five Republican appointees on one side and the four Democratic appointees on the other? A second way to evaluate the disagreement between the chief justice and the president is to examine the relationship of the newly reconstituted Court to precedent: Are the five Republican appointees throwing caution to the wind and overruling numerous significant precedents over the objections of the four Democratic appointees? A third way is to analyze the Court’s reaction to pretextual justifications for prominent actions taken by the Trump administration, a situation especially likely to divide “Obama judges and Trump judges” if the President’s claim is correct: Did the five Republican appointees side with the president’s position in the census case, Department of Commerce v. New York,[4] and did the four Democratic appointees reject that position?

I take on those questions in this Foreword to the third edition of the Supreme Court Review Journal of the American Constitution Society. Overall, I conclude that the past Term rebutted the president’s claim more than it validated it. I also conclude, however, that one term does not a reputation make, especially when the term is a transitional one—which the October 2018 Term likely was. The big question in the years ahead will be what the Court is transitioning to.

Part I of this Foreword documents the Court’s prudence in maintaining a relatively low profile during the past Term. Part II begins to evaluate the president’s charge of a politically identifiable federal judiciary by examining the vote splits generated by the cases decided during the Term. Part III further assesses the president’s claim by discussing the Court’s approach to precedent last Term, which is also a good place to look for storm clouds if the Court is indeed in transition. Part IV turns to the problem of pretext by focusing on the Court’s response to the census case, which (along with the two partisan gerrymandering cases, decided together as Rucho v. Common Cause),[5] was the most important decision of the October 2018 Term. Part V closes by introducing this volume’s treatments of particular decisions from the October 2018 Term—analyses that reflect the formidable expertise of their authors.

I. The Pervasiveness of Prudence

Among the most striking aspects of the October 2018 Term are all of the issues that the Court declined to decide for the time being. The justices denied certiorari on the question of whether a state may prohibit the knowing provision of sex-, race-, or disability-selective abortions by abortion providers.[6] The Court sent back to the Oregon courts an appeal from bakery owners who were fined for refusing to make a wedding cake for a gay couple.[7] The justices postponed until next Term the momentous question of whether discrimination on the basis of sexual orientation and gender identity qualify as sex discrimination under Title VII of the Civil Rights Act of 1964.[8] The Court also postponed until next Term the question of whether the Trump administration can end an Obama administration program (called Deferred Action for Childhood Arrivals or DACA) that has insulated young, undocumented immigrants from deportation.[9] And the justices postponed until next Term the constitutionality of a New York City ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside the city.[10] The Court considered those three cases, among other important ones, at its private conference on January 11, 2019, when eight slots were still unfilled on the April oral argument calendar.[11]

The Court did decide an Establishment Clause case, but arguably not in a way that substantially changed the law. In American Legion v. American Humanist Association, the Court held that the Bladensburg Cross, a ninety-three-year-old memorial to soldiers who perished in World War I, does not violate the Establishment Clause.[12] Seven justices (all but Justices Ginsburg and Sotomayor) agreed that the Bladensburg Cross can permissibly remain in place. Justice Alito’s majority opinion, among other things, distinguished the question of whether the government may allow longstanding religious monuments to stay put (presumptively, yes) from the question of whether the government has the authority to erect new ones,[13] which is a distinction reflecting concerns about social balkanization over religion that Justice Breyer drew in a previous case.[14]

Also illuminating is the nature of the most significant cases that were decided by the Court during the Term. The partisan gerrymandering cases, in which the Court held that partisan gerrymandering claims present nonjusticiable political questions and so are beyond the reach of the federal courts, were mandatory appeals from three-judge district courts.[15] In other words, the justices had no legal choice but to take those cases. Moreover, it would have been irresponsible for the Court to have postponed consideration of the Census case, given the need for an expeditious resolution so that the Census forms could be printed by the federal government in time for the Census to be conducted.

Of course, one cannot know with certainty why the Court appeared determined to leave weighty matters undecided during this past Term. But it seems plausible to suspect that the bitterly divisive Kavanaugh hearings had something to do with it. Among other controversies, then-Judge Kavanaugh was perceived by many to have acted like an enraged partisan during his confirmation hearings.[16] In response to Dr. Christine Blasey Ford’s allegations that he sexually assaulted her during high school, he characterized the accusations against him as “a calculated and orchestrated political hit” designed to exact “revenge on behalf of the Clintons” and fueled by “millions of dollars in money from outside left-wing opposition groups.”[17] Chief Justice Roberts, who understands that judges are well-advised to take some account of the conditions of their own public legitimacy, may have concluded that it would be best for the Court to keep a relatively low profile during the October 2018 Term.[18]

II. The Paucity of Party

The Court issued sixty-six decisions with signed opinions during the Term,[19] and twenty of them were resolved by a vote of five to four.[20] But in contrast to last Term (which was Justice Kennedy’s final), during which the five Republican appointees were in the majority in fourteen of the nineteen five-to-four decisions,[21] this past Term the five Republican appointees voted together in fewer than half of the five-to-four (or five-to-three) decisions—specifically, seven of them.[22] Moreover, there were another nine decisions in which the four Democratic appointees (Justices Ginsburg, Breyer, Sotomayor, and Kagan) were in the majority and were joined by one of the Republican appointees—specifically, four times by Justice Gorsuch[23] twice by Chief Justice Roberts,[24] and once each by Justices Thomas,[25] Alito,[26] and Kavanaugh.[27] There were fewer five-to-four decisions in which the five Republican appointees were in the majority than there were in which the four Democratic appointees were in the majority.

What is one to make of those data? The Court was as divided as ever, but it was not especially divided based on the party affiliation of the appointing president. Accordingly, at least limiting one’s gaze to the October 2018 Term, Chief Justice Roberts and not President Trump would seem to have the better of the argument that there are not Republican judges and Democratic judges, but just judges, on the U.S. Supreme Court.

Of course, one term is just that—one term. And a transitional term, which the past Term may well have been, is especially unlikely to be generalizable. In addition, cases do not all warrant equal weight in assessing the validity of the president’s charge. For example, the five Republican appointees voted in the best interests of the Republican Party in the partisan gerrymandering cases, and the four Democratic appointees voted in the best interests of the Democratic Party in those cases. Both political parties engage in partisan gerrymandering, but Republican-controlled legislatures do it more.[28]

On the other hand, the Census case offers something for both President Trump and Chief Justice Roberts. Eight justices voted in the best interests of the parties that appointed them, but one justice—the decisive one—did not do so in dispositive part. In that case, which is discussed further in Part IV, Roberts was his own best evidence for his characterization of the federal judiciary as apolitical.

III. The Practice of Precedent

Another way to assess the disagreement between President Trump and Chief Justice Roberts—and to consider what a Court in transition may be transitioning to—is to examine the Court’s treatment of precedent during the October 2018 Term. The Court overruled two precedents, both in decisions dividing the five Republican appointees and the four Democratic appointees. In Knick v. Township of Scott, the Court held that a government violates the Takings Clause when it takes property without providing just compensation, and a property owner may bring a Fifth Amendment claim under 42 U.S.C. § 1983 at that time.[29] In so holding, the Court overruled the requirement of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City that property owners follow state compensation procedures before bringing federal takings claims.[30]

Whereas Knick will have major practical implications, the other overruling will have few given the infrequency with which private litigants have sued states in the courts of sister states. In Franchise Tax Board of California v. Hyatt, the Court held that states retain their sovereign immunity from private suits brought in courts of other states.[31] In so holding, the Court overruled Nevada v. Hall, which permitted a state to be sued by private parties in the courts of another state without its consent.[32] The disagreement between the majority and the dissent on the question presented in Hyatt was relatively toned down; Justice Breyer’s dissent appeared far more worried about the future. “Today’s decision can only cause one to wonder which cases the Court will overrule next,”[33] he wrote, twice citing the stare decisis passages of Planned Parenthood of Southeastern Pennsylvania v. Casey,[34] the 1992 decision in which the Court both reaffirmed and narrowed the core of the constitutional right to abortion first vindicated by the justices in Roe v. Wade in 1973.[35] The Kagan dissent in Knick was also very strongly worded (and included warnings about where the Court was heading), especially considering that Williamson County was not obviously correct when it was decided.[36]

Yet it is not at all clear that Hyatt or Knick tells us anything about how the Court will respond to abortion cases; for example, Justice Kennedy likely would have been in the majority in Hyatt, and he refused to overrule Casey.[37] That is not to say the current Republican appointees will not be prepared to invalidate any abortion restrictions. But at least the October 2018 Term closed without huge changes in the law. Notably, the Court retained two precedents that are more significant than the ones it overruled. In Gamble v. United States, the Court reaffirmed, by a vote of seven to two, the dual-sovereignty doctrine, according to which two offenses are not the “same offence” for purposes of the Double Jeopardy Clause if prosecuted by separate sovereigns.[38] And in Kisor v. Wilkie,[39] the Court declined to overrule Auer v. Robbins[40] and Bowles v. Seminole Rock & Sand Company,[41] which direct courts to defer to an agency’s reasonable interpretation of its own genuinely ambiguous regulation.[42]

On the other hand, Justice Kagan’s majority opinion in Kisor arguably “clarified” Auer deference by cutting back on it. Among other things, she emphasized that the agency regulation at issue must be genuinely ambiguous.[43] Moreover, there were ominous signals sent by the four conservative justices who participated in Gundy v. United States,[44] a case that was implicitly about whether to overrule precedent with regard to the non-delegation doctrine. The Court declined to do so by a vote of five to three (Justice Kavanaugh did not participate because he had not yet been confirmed when the case was argued). Justice Kagan’s plurality opinion read 34 U.S.C. § 20913(d) as requiring the U.S. attorney general to apply the registration requirements of the Sex Offender Registration and Notification Act as soon as feasible to offenders convicted before the statute’s enactment. So read, she concluded, the provision was not an unconstitutional delegation of legislative authority to the attorney general. The fifth vote was provided by Justice Alito, who concurred in the judgment only in an opinion that signaled a willingness to revisit the Court’s approach to non-delegation questions should a majority of justices—that is, with the participation of Justice Kavanaugh—prove willing to do so.[45] One should probably expect a reinvigoration of the non-delegation doctrine in the years ahead.

Still, so far there do not appear to be anywhere near five votes for Justice Thomas’s striking—and curiously timed[46]—declaration this past Term that stare decisis should hold no independent weight when a past decision is “demonstrably erroneous” from an originalist perspective.[47] The number of times over the course of the Term that Justice Thomas called for overruling longstanding—and, in some cases, revered—precedents is jaw-dropping: Powell v. Alabama,[48] Gideon v. Wainwright,[49] New York Times v. Sullivan,[50] Roe v. Wade,[51] all of the Court’s substantive due process decisions,[52] Batson v. Kentucky,[53] and all of the Court’s Establishment Clause precedents involving state and local governments.[54] It is as if he cannot imagine a future time in which the question will be whether a differently composed Court should respect precedents that reflect his own interpretive and ideological commitments. Five justices who held such views would likely have a radically destabilizing effect on the path of the law.

IV. The Problem of Pretext

We are living in a period of pretext. For example, laws aimed at making it harder for Democratic-leaning voters to vote are defended as preventing the (effectively non-existent) problem of in-person voter fraud.[55] Or, to take another example, laws intended to make it harder for women to exercise their constitutional right to abortion are defended as protecting the physical health of those very women.[56] Accordingly, a basic question confronting the Court is when it is prepared to credit pretextual justifications for governmental action. More precisely, the question is when the justices should focus on the actual purpose of government action—especially actions of the current administration—and when a conceivable, permissible purpose suffices to survive a legal challenge. That question arises in many areas of law, and the context obviously matters in answering it well.

Last term ended with the Court, in a majority opinion authored by the chief justice, applying rational basis review and so upholding an immigration executive order that the Trump administration claimed had been issued by the president in order to protect national security. In Trump v. Hawaii,[57] the five Republican appointees, in contrast to the four Democratic appointees, refused to consider the extraordinary nature and number of bigoted public statements about Muslims that Trump had made—and had never disavowed—in publicly proclaiming the need for the order. Perhaps Justice Sotomayor’s charge in dissent that the Court had committed another Korematsu stung the chief justice because there was truth in her words:[58] Rational basis review disables judges from distinguishing genuine national security concerns from unconstitutional bigotry, and no amount of protesting—perhaps too much—that “Korematsu was gravely wrong the day it was decided” is responsive to that basic objection.[59] To be sure, it helped the majority that the Court was reviewing the third iteration of the executive order at issue, one that had been more properly vetted and regularized by professionals in the executive branch. But it is not clear why those facts should make a decisive difference when the basic conclusion had been preordained by the president.

This Term told a different story, one that did not corroborate the president’s claim about Obama judges and Trump judges. In Flowers v. Mississippi, Chief Justice Roberts joined Justice Kavanaugh’s majority opinion for seven justices declaring that “[w]e cannot just look away” from very strong evidence of racial discrimination in jury selection.[60] Flowers was an easy case because racial discrimination triggers strict scrutiny, the most demanding level of judicial review known to constitutional law. More challenging was a case in which the partisan stakes were high: the profoundly important Census litigation. In response to a lawsuit filed under the Administrative Procedure Act, Justice Kavanaugh (as well as Justices Thomas, Alito, and Gorsuch) did “just look away” from the untenable assertion of the Trump administration that it wanted to add a citizenship question to the Census in order to better enforce the Voting Rights Act.[61] By contrast, Chief Justice Roberts wrote the Court’s opinion politely portraying that purpose as pretextual. In the years ahead, whether the chief justice responds consistently across administrations to pretextual justifications for government action may go a long way toward determining whether he or President Trump is correct about the nature of the institution that is now firmly the Roberts Court in more than name.

To be clear, the point is not that pretext analysis has a particular ideological or partisan valence—it likely does not. For example, pretext analysis could be (mis)used by conservative judges to, among other things: reinvigorate economic substantive due process (by requiring actual, not conceivable, governmental interests to support economic regulations); end affirmative action in higher education (by rejecting the diversity rationale as disingenuous); gut remaining campaign finance regulations (as really about equality and not corruption); and invalidate or stall actions by administrative agencies during Democratic administrations (as supported only by pretextual justifications).[62] The point, rather, is that if Chief Justice Roberts (as well as some of his colleagues) disciplines himself to the virtue of consistency, the Court will be less likely to flip-flop from Republican to Democratic administrations in the way that it often appears to do so on issues of executive power.[63]

V. The Pieces of the Puzzle

The balance of this volume is devoted to more detailed assessments of particular decisions from the October 2018 Term. Proceeding in the order in which their articles appear, Richard Schragger and Micah Schwartzman argue that the decision in American Legion v. American Humanist Association[64] represents a significant development in the dismantling of Establishment Clause jurisprudence. In their view, the Court has been consistently undermining precedent that restricts the government from providing material and expressive support for religion. Although American Legion could be read narrowly as part of the ongoing death of the separation of church and state, they believe the decision amounts to an actual inversion of disestablishment principles. That is because the Court did not use the Establishment Clause as a shield to protect vulnerable minorities, but instead as a sword against them. The authors argue that in upholding the Bladensburg Cross, and in declaring that its removal would exhibit hostility toward religion, the Court entrenched the beliefs of past religious majorities and opened the door to Christian preferentialism. As ethno-religious nationalism is on the rise in our nation and around the globe, they warn, American Legion participates in the weakening of constitutional protections against the integration of church and state.

Justin Levitt analyzes the Census decision, Department of Commerce v. New York.[65] He makes two main analytical points. First, he argues that presidential administrations are generally granted broad discretion to change course on matters of policy, but that the grant of such discretion is conditional on agencies possessing and bringing to bear experience and expertise, as opposed to simply imposing a naked policy preference. Second, he argues that the Court’s decision in the Census case illustrates the more general relevance of motive in assessing legality.

Imre Szalai examines the three new arbitration decisions—Henry Schein Inc. v. Archer & White Sales Inc., Lamps Plus, Inc. v. Varela, and New Prime, Inc. v. Oliveira[66]—which he collectively calls the Court’s “2018 Arbitration Docket.” After considering each decision, he concludes that the Federal Arbitration Act (FAA) is badly in need of reform by Congress because the Court’s current, largely harsh framework for arbitration collapses upon serious scrutiny of the text, history, and purpose of the FAA.

In her analysis of Manhattan Community Access Corporation v. Halleck,[67] Genevieve Lakier assesses the conventional wisdom that the Court is especially protective of free speech rights. The case involved a First Amendment challenge to viewpoint discrimination by a private nonprofit corporation in its operation of a public access channel, based in part on the claim that the corporation qualified as a state actor. In what Lakier characterizes as an overly-narrow application of the state-action doctrine, the Court held that the corporation was not a state actor and therefore was not bound by the First Amendment. Citing that holding and related previous decisions, Lakier concludes that while there are many areas in which the Court vigorously protects free speech rights, those rights are frequently undercut when they conflict with property rights.

Steven Schwinn examines the Court’s decision in Kisor v. Wilkie.[68] As noted, the majority declined to overturn—at least formally—the Court’s prior decision in Auer v. Robbins, which grants administrative agencies judicial deference when agencies interpret their own ambiguous regulations. While Auer deference has survived for the time being, he warns that the fractured decision in Kisor portends the possible end to both Auer deference and the related doctrine of Chevron deference, which instructs courts to defer to reasonable agency interpretations of ambiguous statutory language that the agency is charged with administering.[69] In Schwinn’s view, the end of such deference would mark an ominous step in the direction of what some observers fear will be the Court’s dismantling of the modern administrative state.

William Araiza focuses on what he calls “the near-miss” in Gundy v. United States.[70] He first suggests that progressives need to get serious about engaging with calls by legal conservatives such as Justice Gorsuch to rethink the non-delegation doctrine. Araiza further argues that there may be room for a consensus position that focuses on delegations implicating individual liberty and involving delegations of “incongruous” power to executive branch officials—specifically, delegations to the attorney general of the power to declare criminal law. Finally, he contends that such a position, while not ideal from a progressive perspective, could advance the progressive objectives of protecting human liberty and ensuring the fidelity of the executive branch to law, all without seriously damaging the capacity of the modern administrative state to execute its vital responsibilities.

Carol Steiker and Jordan Steiker turn to the Court’s death penalty decisions from the past Term, Madison v. Alabama[71] and Bucklew v. Precythe.[72] They initially observe that, with Justice Kennedy’s departure, those decisions exposed a major shift in tone regarding the appropriate role of federal courts in adjudicating the claims of death-row inmates. Their central claim is that the new conservative majority reinforced the constitutionality of capital punishment and restricted end-stage litigation, while the new “swing” justices in death cases—Chief Justice Roberts and Justice Kavanaugh—joined the four liberals to police outlying practices that tend to undermine the legitimacy of the death penalty. The Court’s approach, they conclude, suggests that capital defendants will make no new inroads against capital punishment with the current Court, so that the continued withering away of the death penalty in America will likely occur primarily through the actions of prosecutors, legislators, executive officials, and state judges.[73]

Finally, in their assessment of Rucho v. Common Cause and Lamone v. Benisek, a pair of partisan gerrymandering cases, Guy-Uriel Charles and Luis E. Fuentes-Rohwer argue that the Court failed to make a persuasive argument for the non-justiciability of partisan district line drawing. Rather, the majority was committed to finding partisan gerrymandering non-justiciable because of “its lack of comfort with some modern conceptions” of representative democracy, namely “proportionatlity; non-partinship; and cleanliness.” As a result, Charles finds it difficult to take the decisions “seriously as doctrine.”

***

The October 2018 Term may have been more of a transitional term than one for the history books. In the wake of the divisive Kavanaugh hearings and the president’s public questioning of judicial impartiality, the Court left things relatively undecided and relatively non-partisan—at least for now. But the justices still issued some significant decisions. They may also have dropped some hints along the way about the kind of tribunal that the Roberts Court is transitioning to. We shall soon begin to see.

Siegel is the David W. Ichel Professor, Duke Law School. For useful feedback or conversations about the October 2018 Term of the Supreme Court of the United States, I thank Curt Bradley, Erwin Chemerinsky, Michael Dorf, Craig Green, David Strauss, the judges on the Arkansas Judicial Council, and the attorneys, summer associates, and alumni of Simpson Thacher & Bartlett LLP in New York City. The title of this Foreword is partly an homage to Cass Sunstein’s famous Foreword. See Cass R. Sunstein, Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996).

[1] See Adam Liptak, Chief Justice Defends Judicial Independence After Trump Attacks ‘Obama Judge’, N.Y. Times (Nov. 21, 2018) (quoting the response of Chief Justice John Roberts to President Donald Trump’s characterization of a judge who had ruled against his administration’s asylum policy as “an Obama judge”).

[2] See, e.g., Robert Post, Brett Kavanaugh Cannot Have It Both Ways, Politico Mag. (Oct. 6, 2018) (“With calculation and skill, Kavanaugh stoked the fires of partisan rage and male entitlement.”).

[3] See Liptak, supra note 1. For a comparison of John Roberts and Donald Trump along a different dimension of difference, see Michael Dorf, Two Branches, Two Leaders, Two Speeches to Adolescent Boys, Dorf on L. (Aug. 7, 2017).

[4] Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019).

[5] Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

[6] See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019) (upholding an Indiana law concerning the disposition of fetal remains but otherwise denying certiorari).

[7] Klein v. Oregon Bureau of Labor & Indust., No. 18-547, 2019 WL 2493912 (U.S. June 17, 2019); see Adam Liptak, Supreme Court Won’t Rule on Clash Between Another Bakery and Gay Couple, N.Y. Times (June 17, 2019).

[8] Altitude Express, Inc. v. Zarda, No. 17–1623 (U.S. Apr. 22, 2019); Bostock v. Clayton Cty., Ga., No. 17–1618 (U.S. Apr. 22, 2019); R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, No. 18–107 (U.S. Apr. 22, 2019).

[9] McAleenan v. Vidal, No. 18–589 (U.S. June 28, 2019).

[10] N.  Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, No. 18–280 (U.S. Jan. 22, 2019).

[11] See Erwin Chemerinsky, A Look Back at the Supreme Court’s October 2018 Term, A.B.A.J. (July 2, 2019).

[12] Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019).

[13] See id. at 2085 (“The passage of time gives rise to a strong presumption of constitutionality.”).

[14] See Van Orden v. Perry, 545 U.S. 677, 702–03 (2005) (Breyer, J., concurring in the judgment). In potentially reflecting a constitutional commitment to reduce social balkanization over salient dimensions of difference, the Establishment Clause may be like the Equal Protection Clause. See generally, e.g., Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 Duke L.J. 781 (2006).

[15] See Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

[16] See, e.g., Post, supra note 2 (“He had apparently concluded that the only way he could rally Republican support was by painting himself as the victim of a political hit job. He therefore offered a witches’ brew of vicious unfounded charges, alleging that Democratic members of the Senate Judicial Committee were pursuing a vendetta on behalf of the Clintons.”).

[17] See Emily Birnbaum, Kavanaugh Says He’s Victim of ‘Revenge on Behalf of the Clintons’, Hill (Sept. 27, 2018) (“This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”).

[18] For a discussion, see generally Neil S. Siegel, More Law than Politics: The Chief, the “Mandate,” Legality, and Statesmanship, in The Health Care Case: The Supreme Court’s Decision and Its Implications (Nathaniel Persily, Gillian E. Metzger & Trevor W. Morrison eds., 2013); Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 Tex. L. Rev. 959 (2008).

[19] SCOTUSblog, Final Stat Pack for October Term 2018 1 (2019) [hereinafter Final Stat Pack for October Term 2018].

[20] Id. at 19. Following SCOTUSblog, the analysis in the text assumes that Justice Kavanaugh would have dissented in Madison v. Alabama, 139 S. Ct. 718 (2019), and Gundy v. United States, 139 S. Ct. 2116 (2019), which were both five-to-three decisions in which oral argument occurred before Kavanaugh’s confirmation. Final Stat Pack for October Term 2018, supra note 19, at 5.

[21] Id. at 19.

[22] See Nielsen v. Preap, 139 S. Ct. 954 (2019); Bucklew v. Precythe, 139 S. Ct. 1112 (2019); Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019); Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485 (2019); Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (2019); Knick v. Township of Scott, 139 S. Ct. 2162 (2019); Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

[23] See Wash. State Dep’t of Licensing v. Cougar Den Inc., 139 S. Ct. 1000 (2019); Herrera v. Wyoming, 139 S. Ct. 1686 (2019); United States v. Davis, 139 S. Ct. 2319 (2019); United States v. Haymond, 139 S. Ct. 2369 (2019).

[24] See Madison v. Alabama, 139 S. Ct. 718 (2019); Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019).

[25] See Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743 (2019).

[26] See Gundy v. United States, 139 S. Ct. 2116 (2019).

[27] See Apple Inc. v. Pepper, 139 S. Ct. 1514 (2019).

[28] See, e.g., Dahlia Lithwick, The Supreme Court’s Partisan Gerrymandering Ruling Is a Body Blow to Our Democracy, Slate (June 27, 2019) (“In an effort to appear as though it hovers permanently above the partisan fray, the Supreme Court . . . delivered perhaps the most staggering win to the Republican Party since Bush v. Gore.”).

[29] Knick v. Township of Scott, 139 S. Ct. 2162 (2019).

[30] Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

[31] Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485 (2019).

[32] Nevada v. Hall, 440 U.S. 410 (1979).

[33] Hyatt, 139 S. Ct. at 1506 (Breyer, J., dissenting).

[34] Id. at 1504–05, 1506 (first citing and later quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854–55 (1992)).

[35] Roe v. Wade, 410 U.S. 113 (1973).

[36] See Knick v. Township of Scott, 139 S. Ct. 2162, 2190 (2019). (Kagan, J., dissenting) (“Just last month, when the Court overturned another longstanding precedent, Justice BREYER penned a dissent. He wrote of the dangers of reversing legal course ‘only because five Members of a later Court’ decide that an earlier ruling was incorrect. He concluded: ‘Today’s decision can only cause one to wonder which cases the Court will overrule next.’ Well, that didn’t take long. Now one may wonder yet again.”) (citations omitted).

[37] See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[38] Gamble v. United States, 139 S. Ct. 1960 (2019).

[39] Kisor v. Wilkie, 139 S. Ct. 2400 (2019).

[40] Auer v. Robbins, 519 U.S. 452 (1997).

[41] Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).

[42] See Kisor, 139 S. Ct. at 2414–15.

[43] Id.

[44] Gundy v. United States, 139 S. Ct. 2116 (2019).

[45] Id. at 2130, 2131 (Alito, J., concurring in judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”).

[46] Why did Justice Thomas wait until this point in his judicial tenure to write such an opinion? And why did he do so in a case in which he agreed with the Court that the precedent at issue should be retained, thereby offering what is akin to an advisory opinion?

[47] Gamble v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring).

[48] Powell v. Alabama, 287 U.S. 45 (1932); see Garza v. Idaho, 139 S. Ct. 738, 756–58 (2019) (Thomas, J., dissenting).

[49] Gideon v. Wainwright, 372 U.S. 335 (1963); see Garza, 139 S. Ct. at 756–58 (Thomas, J., dissenting).

[50] N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964); see McKee v. Cosby, 139 S. Ct. 675, 676 (2019) (Thomas, J., concurring in denial of certiorari).

[51] Roe v. Wade, 410 U.S. 113 (1973); see Timbs v. Indiana, 139 S. Ct. 682, 692 (2019) (Thomas, J., concurring in judgment).

[52] See Timbs, 139 S. Ct. at 691–92 (Thomas, J., concurring in judgment).

[53] Batson v. Kentucky, 476 U.S. 79 (1986); see Flowers v. Mississippi, 139 S. Ct. 2228, 2252–56 (2019) (Thomas, J., dissenting).

[54] See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094–95 (2019) (Thomas, J., concurring in judgment).

[55] See generally, e.g., Lorraine C. Minnite, The Myth of Voter Fraud (2010).

[56] See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[57] Trump v. Hawaii, 138 S. Ct. 2392 (2018).

[58] Id. at 2448 (Sotomayor, J., dissenting) (“By 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, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”) (quoting Hawaii, 138 S. Ct. at 2423).

[59] Id. at 2423 (majority opinion). For a good discussion, see generally Jamal Greene, Is Korematsu Good Law?, 128 Yale L.J.F. 629, 629 (2019), critiquing the Hawaii Court’s claim of overruling Korematsu as “empty” because the Court did not specify which legal propositions it was repudiating and “grotesque” because “its emptiness means to conceal its disturbing affinity with that case”.

[60] Flowers v. Mississippi, 139 S. Ct. 2228, 2250 (2019).

[61] Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019).

[62] For a sobering argument that judicial review of agency action for pretext should be limited to blatant lies—to material misrepresentation of critical facts—see Samuel Estreicher, “Pretext” and Review of Executive Decisionmaking in the Citizenship Census Question Case, Verdict (July 9, 2019).

[63] For discussion of judicial inconsistency on questions of presidential authority based on the party affiliation of the President whose conduct is under review, see Daniel Farber & Neil S. Siegel, United States Constitutional Law 184 (2019).

[64] Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019).

[65] Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019).

[66] Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019); Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019); New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019).

[67] Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (2019).

[68] Kisor v. Wilkie, 139 S. Ct. 2400 (2019).

[69] Chevron U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

[70] Gundy v. United States, 139 S. Ct. 2116 (2019).

[71] Madison v. Alabama, 139 S. Ct. 718 (2019).

[72] Bucklew v. Precythe, 139 S. Ct. 1112 (2019).

[73] For an extended argument to that effect, see Brandon L. Garrett, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice (2017).