Interpreting tactical voting blocs in USSC decisions

It's June and we will have a lot of hot button decisions coming down from the high court in the next month. I think anyone who reads my posts note that I view this court as extreme, unprincipled and lawless.

One point comes up a lot in pushback from people trying to defend the indefensible integrity of this Court is pointing to decisions when some of the liberal justices join in the result. The argument is that the decision must not be that extreme, because it drew some liberal support.

I would contend that almost all the time that those votes occur, they are tactical. Obviously there's no way to prove the undisclosed motivations behind the vote of a particular justice. But you can make some reasoned guesses based upon the content of the decision and some of the other concurring/dissenting decisions.

In my opinion, an excellent example of this is Glacier Northwest v. Teamsters, a decision that came down last week largely on the right to strike. You can read the link if you like and I can go through why I think it's a crazy decision, but that's not the point of this thread, at least as I frame it.

I want address the fact that it was 8-1 decision, with only Justice Ketanji Brown Jackson dissenting and what a great dissent it was. Justices Sotomayor and Kagan, recent of extreme disagreement over Andy Warhol, joined in the majority. Alito, Thomas and Gorsuch concurred in the result but had a separate opinion saying they would've gone much further and all but eviscerated the whole NLRB scheme, a bete noir from the New Deal that those that fund the current justices have long sought to destroy without going through the legislative process through what I contend are spurious legal theories like this one.

For those pointing to the joinder of Sotomayor and Kagan as evidence that this decision is defensible, there is a very strong implication that they did so to prevent a far more extreme decision by giving a majority to Barrett's majority opinion, not going as far although likely setting up a future decision fully making it legal to exploit labor.

Had they not joined the majority, it would've likely been a far more extreme decision.

I love Justice KBJ's dissent. I suspect she has concluded that you have to take a long game view and put out some markers now, knowing that it will be a long time before they can be cashed in.

My point out of all this is that we should not assume that the joinder of Kagan and Sotomayor means the decision is not extreme. It's likely a tactical choice. I fear and suspect I will be making this point repeatedly over the next 25 days.


https://www.supremecourt.gov/opinions/22pdf/21-1449_d9eh.pdf

 

Maybe not on tactical voting blocks, but some evergreen observations applicable to the discussion of all USSC opinions

 

I honestly don't know. I got through about a quarter of Steve Vladeck's book and then I picked up something else. I will get back to it. But he shows pretty persuasively that the Court was heavily regulated by Congress at the founding. But they've since created a culture that they are beyond regulation from any of the other branches, and that's how we were taught in law school. So you have to overcome very ingrained perceptions. Of course, they may adapt their own just to try to release the pressure but I don't think they will make it very strong or enforceable if they do

 

A classic worth rewatching

 

Saved from 1994. Still applicable to this Court.

 

Good term initial recap from Strict Scrutiny

What else can the Supreme Court get away with? - Strict Scrutiny

 

At the conclusion of this episode, Jane Mayer said she is working on a new book on Leonard Leo and the 40-year campaign on the courts. I've read a lot about it, including on similar specialty books. But she is a gifted reporter and has a lot of insight and I suspect it's going to plow some new ground. Cannot wait to read. She didn't say when it would be available.

 

Thanks. That is informative. It’s plain that the 3 Democratic appointees perceive through conference that there is little to be gained through strategic comity and that it would be better to work an outside game through alarm at plain excesses without public support. Justice Thomas needs a therapist.

 

He’s working through stuff. This moment has been coming for 40 years and is based in wounds that go back to childhood