4 ms·

The lines of division aren’t as clear as who appointed who. 9-0 decisions are not uncommon, and recent decisions suggest it may be more of a 3-3-3 court with an

by SllX 3y ago

The lines of division aren’t as clear as who appointed who. 9-0 decisions are not uncommon, and recent decisions suggest it may be more of a 3-3-3 court with an Institutionalist axis and the “partisan” axis hyped by the media is obscuring a much more salient Judicial doctrine axis. But we’ll know more about how well that 3-3-3 theory holds as the body of opinions published by Justices Barrett and Jackson becomes more fleshed out.

dehrmann 3y ago
> Institutionalist axis That's an interesting take. I'm guessing the divisions are Bush appointees are institutionalists, Democrat appointees are partisans, Trump appointees are partisans?
- torstenvl 3y ago
  In my view: Thomas, Alito, Coney Barrett tend to be partisan conservatives. Kavanaugh, Gorsuch, Roberts, and Kagan tend to be mainstream jurists (whether that's "institutionalist," I'm not sure). If you see Kagan side with the conservatives or Gorsuch, Roberts, or Kavanaugh side with the liberals, it's usually in favor of the mainstream, centrist, legal establishment view. The differences between them tend to relate to mainstream legal debates (e.g., the proper role of Chevron deference in the administrative state; Kagan was an admin law professor, whereas Gorsuch in particular is skeptical of Chevron deference). Sotomayor, Brown Jackson tend to be partisan leftists.
- NoToP 3y ago
  Not at all. Thomas is the biggest political hack on the bench. The Trump Era appointees were basically federalist society picks and surprisingly institutionalists. Obama only got one person on the bench thanks to McConnells games iirc. So the recent polarization hasn't leaked into the court via the appointments of the polarized Era. It just sort of happened the same as it did to the population at large.
  - semiquaver 3y ago
    > Obama only got one person on the bench Obama appointed Kagan (who was also his SG) and Sotomayor.
    - NoToP 3y ago
      I did not rc. Thanks.
- SllX 3y ago
  Nah. The court is pretty heavily Textualist and/or Originalist with Justice Thomas at the Originalist extreme and Justice Gorsuch at the Textualist extreme, but along the less Institutional axis you have Justices Thomas, Gorsuch and Alito and along the more Institutionalist end you have Chief Justice Roberts (at the extreme) and Justices Kavanaugh and Barrett. The liberal Justices tend to get lumped together, but it’s worth noting a couple of details: the original formulation of the theory of the 3-3-3 court was with Justice Breyer who retired and was replaced by Justice Jackson. Justice Kagan is probably the most Institutionalist of these 3 and has always had an excellent rapport with the Federalist Society, Justice Sotomeyer in my estimation has always been the one most likely to defer to the Executive branch when they are a party to a case (but I formed that opinion during the Obama administration, it may not have aged well and I should re-examine it regardless) and I don’t feel confident in the slightest giving a good assessment of Justice Jackson without seeing more from her, I barely feel like we’ve seen enough from Justice Barrett and some think she might be more with the Thomas and Gorsuch end than with the Chief and Kavanaugh going by this current term which would make this a 4-2-3 court instead. Long story short, it’s nuanced but all most people see is who appointed who and the final tally in cases with heavier partisan splits, but the manner in which a case was decided (the controlling opinion in other words) matters more for future jurisprudence than the judgement itself which is important primarily to the parties involved. Given a choice, Roberts pushes for cases to be decided as narrowly as possible, but that’s harder to do when he’s more likely to be the 6th vote than the 5th vote.

by SllX 3y ago

dehrmann 3y ago

> Institutionalist axis That's an interesting take. I'm guessing the divisions are Bush appointees are institutionalists, Democrat appointees are partisans, Trump appointees are partisans?

torstenvl 3y ago
In my view: Thomas, Alito, Coney Barrett tend to be partisan conservatives. Kavanaugh, Gorsuch, Roberts, and Kagan tend to be mainstream jurists (whether that's "institutionalist," I'm not sure). If you see Kagan side with the conservatives or Gorsuch, Roberts, or Kavanaugh side with the liberals, it's usually in favor of the mainstream, centrist, legal establishment view. The differences between them tend to relate to mainstream legal debates (e.g., the proper role of Chevron deference in the administrative state; Kagan was an admin law professor, whereas Gorsuch in particular is skeptical of Chevron deference). Sotomayor, Brown Jackson tend to be partisan leftists.
NoToP 3y ago
Not at all. Thomas is the biggest political hack on the bench. The Trump Era appointees were basically federalist society picks and surprisingly institutionalists. Obama only got one person on the bench thanks to McConnells games iirc. So the recent polarization hasn't leaked into the court via the appointments of the polarized Era. It just sort of happened the same as it did to the population at large.
- semiquaver 3y ago
  > Obama only got one person on the bench Obama appointed Kagan (who was also his SG) and Sotomayor.
  - NoToP 3y ago
    I did not rc. Thanks.
SllX 3y ago
Nah. The court is pretty heavily Textualist and/or Originalist with Justice Thomas at the Originalist extreme and Justice Gorsuch at the Textualist extreme, but along the less Institutional axis you have Justices Thomas, Gorsuch and Alito and along the more Institutionalist end you have Chief Justice Roberts (at the extreme) and Justices Kavanaugh and Barrett. The liberal Justices tend to get lumped together, but it’s worth noting a couple of details: the original formulation of the theory of the 3-3-3 court was with Justice Breyer who retired and was replaced by Justice Jackson. Justice Kagan is probably the most Institutionalist of these 3 and has always had an excellent rapport with the Federalist Society, Justice Sotomeyer in my estimation has always been the one most likely to defer to the Executive branch when they are a party to a case (but I formed that opinion during the Obama administration, it may not have aged well and I should re-examine it regardless) and I don’t feel confident in the slightest giving a good assessment of Justice Jackson without seeing more from her, I barely feel like we’ve seen enough from Justice Barrett and some think she might be more with the Thomas and Gorsuch end than with the Chief and Kavanaugh going by this current term which would make this a 4-2-3 court instead. Long story short, it’s nuanced but all most people see is who appointed who and the final tally in cases with heavier partisan splits, but the manner in which a case was decided (the controlling opinion in other words) matters more for future jurisprudence than the judgement itself which is important primarily to the parties involved. Given a choice, Roberts pushes for cases to be decided as narrowly as possible, but that’s harder to do when he’s more likely to be the 6th vote than the 5th vote.