Are Justices Kavanaugh and Barrett feeling the threat of expansion?

Questioning their lack of fortitude.

Law professor (and prolific writer) Josh Blackman has an interesting piece in Newsweek, where he observes that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have “warned that Justices Brett Kavanaugh and Amy Coney Barrett lack backbone.”

He provides as an example the case of Fulton v. City of Philadelphia, in which the Court was presented with the question of whether the City of Philadelphia violated the First Amendment after it stopped referring foster children to a Catholic foster care agency after the agency “would not certify same-sex couples to be foster parents due to its religious beliefs about marriage.”

Justices Thomas, Alito, and Gorsuch were ready to overturn Supreme Court arguably incorrect precedent (dating back to 1990) that “the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice.”

Justices Kavanaugh and Barrett weren’t willing to take that step. (In its February 2021 decision, the Supreme Court held the City of Philadelphia violated the Free Exercise Clause of the First Amendment but the Court did not go far enough for religious freedom advocates.)

Justice Gorsuch, in his concurring opinion, called out the Court’s lack of courage:

“Dodging the question today guarantees These cases will keep coming until the Court musters the fortitude to supply an answer.”

Blackman notes this “personal attack no doubt reflects simmering tensions within the Court.”

He also observes how Justices Barrett and Kavanaugh (contrary to Thomas and Gorsuch and Alito) argued that California’s singing ban on churches could remain in place during the COVID pandemic. Barrett “thus used her first separate writing on the Court to rule against people of faith.”

Then there is the case of Barronelle Stutzman, a Christian florist from Washington state who is being punished by the state for declining to create a floral arrangement for a same sex wedding. 

Three justices –Thomas, Alito, and Gorsuch – voted to take her case. She needed just one more justice to vote in her favor in order to get before the Supreme Court. Justices Kavanaugh and Barrett (and Roberts) declined.

Blackman writes of other cases where Thomas, Alito, and Gorsuch alleged “Kavanaugh and Barrett were afraid of public criticism.” Like Blackman, we have previously noted Justice Thomas took aim at the refusal of the Court to act on an issue of “undisputed importance” where the Pennsylvania Supreme Court usurped the state legislature’s authority by changing the state election laws.

Questions of motive.

All this leads us to ask about the reasons for Kavanaugh and Barrett’s lack of fortitude.

It could be that they have aligned themselves with the political leanings of Chief Justice Roberts, who tries to steer the Court away from controversial decisions, even if those decisions would be correct and Constitutional.

We suspect there might be something else.

Since 2020, there have been increasing calls to expand the Supreme Court. Then-candidate Biden refused to condemn the expansion, thus revealing his belief that expansion is necessary.

After the election, Biden issued an Executive Order to form a Commission to report on expanding the Court. The Commission’s membership – majority liberal – make it more likely than not that they will recommend expanding the Court.

Properly understood, expansion is a threat against “conservatives” on the Court. The message is clear: Watch what you do or there will be changes.

The Supreme Court is certainly aware of this cloud over its head. Legal writers and professors have observed that the Court, under the direction of Chief Justice Roberts, has seen an uptick in the amount of “unanimous or near-unanimous” decisions. A show to the public that the Court isn’t as divided as some may believe.

If the threat of expansion has increased the amount of agreement within the Court, it very well may a factor in the cases the Court has declined to consider.

In other words, it is time we ask whether certain Justices – Roberts, Kavanaugh, and Barrett – are allowing themselves to be held hostage by this threat.