Splinters in the 6-3 Supreme Court (Part 4: Clarence Thomas)

Credit: Evan Vucci/AP

Clarence Thomas is a different story from Amy Coney Barrett.

We've been seeing how Justice Barrett has emerged as an increasingly moderate voice on the Court. In some of the Court's most important cases, she has disagreed with the more politically conservative positions taken by the majority or by justices in dissent, and she has even sided with the Court's liberals.

[As mentioned in Part 3 of this series, this is now being noticed by other commentators, and some political conservatives are distressed. See the several commentaries cited in that post, as well as in another recent one: David Lat, Amy Coney Barrett Is the Most Interesting Justice on the Court, Bloomberg Law, July 2, 2025, https://news.bloomberglaw.com/litigation/amy-coney-barrett-is-the-most-interesting-justice-on-the-court .]

In sharp contrast, there seems to be no flexibility from Justice Thomas. If anything, his record demonstrates a deepening political conservatism and suggests a contempt for other political conservatives on the Court who sometimes stray from the party line.

One need only take a look at some of the cases in which Thomas wrote a dissenting opinion. Sometimes, one or two of the Court's other most politically conservative justices joined his dissent. Oftentimes, no one did.

Just connect the dots of Thomas's dissenting opinions in these recent cases:

(click to enlarge for a better view)

Dissenting alone in U.S. v. Rahimi, Thomas argued that the federal law, prohibiting firearm possession by someone subject to a restraining order for domestic violence, violated the 2nd Amendment. Thomas had written the majority opinion for the Court two years earlier in New York State Rifle and Pistol Assn. v. Bruen. There, he asserted that a gun restriction was invalid unless it had a historical antecedent at the time the 2nd Amendment was ratified. This domestic violator law had none.

Thomas's Bruen test differed from the so-called "strict scrutiny" test that the Court typically applies to protect a fundamental constitutional right--i.e., is the law necessary for a compelling reason? [Think mandatory smallpox vaccinations during an epidemic despite personal religious objections.] In Rahimi, the next major gun rights case after Bruen, Thomas lost the majority. In Rahimi, he protested that the rest of the Court was disregarding his historical test from Bruen. [As could well have been expected.] Alone in applying his Bruen test literally, Thomas insisted that prohibiting firearm possession by a domestic abuser was unconstitutional because such a law did not exist in 1792.

Writing for the Court in Rahimi, Chief Justice Roberts reasoned that there were analogous laws applicable to violent persons in existence historically. Moreover, such laws were confirmed by "common sense." That was not sufficient for Thomas.

Another gun rights case:

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In VanDerStock, as in Rahimi, Thomas dissented in a solo opinion. (Justice Alito also dissented, but he did not join Thomas's opinion.) Thomas insisted on a narrower meaning of "firearm" that would be subject to the congressionally authorized regulations of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In Thomas's view, it could not include weapons parts kits or "ghost guns."

Thomas protested that only an object that is already a “weapon” could constitute a regulable "firearm." Disagreeing with the majority opinion authored by Justice Gorsuch [Who is not exactly an enthusiast of gun restrictions.], Thomas argued that a weapon parts kit could not be viewed as a "firearm" until after it was converted into an operable gun--i.e., until it is “something to fight with.” Consequently, according to Thomas, the ATF had no authority under the Gun Control Act of 1968 to regulate "ghost guns" or anything else that was not already a functioning weapon.

In yet another gun case:

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Thomas issued another lone dissent in Snope. (Justices Alito and Gorsuch did not join Thomas; they simply noted that they dissented.) He would have granted certiorari in order to review the "surprising conclusion" of the 4th Circuit Court of Appeals that there was no fundamnetal right to possess so-called "assault rifles." Thomas argued that AR–15s are unquestionably “arms" within the meaning of the 2nd Amendment. There was no “historical regulation” that was sufficiently like Maryland’s ban which could serve as a constitutionally valid 2nd Amendment exception. 

In Thomas's view, "assault rifles" like AR–15s easily fall within the category of protected arms. He reasoned that "[t]ens of millions of Americans own AR–15s, and the “overwhelming majority” of them “do so for lawful purposes, including self-defense and target shooting.” That settled the question for Thomas. Accordingly, he would have reviewed and reversed the 4th Circuit's decision and invalidated the Maryland law.

As in Snope, Thomas wrote some of his most revealing dissenting opinions when the majority simply rejected a petition for certiorari--i.e., choose not to hear an appeal. Here's another one:

(click to enlarge for a better view)

Again in Allstates, Thomas wrote a lone dissenting opinion. Gorsuch noted that he also dissented, but neither he nor anyone else joined Thomas's dissent.

Allstates, a nationwide industrial general contractor that is required to comply with the workplace safety standards set by OSHA (the Occupational Health and Safety Administration)--and has been fined in the past for violations--challenged the agency's authority. Its legal claim was that Congress violated the Constitution by creating an agency to exercise legislative powers--i.e., to promulgate regulations.

The federal circuit court below upheld OSHA's authority to set workplace safety standards, and a 7-2 majority of the Justices rejected Allstates' petition to appeal. Congress's authority to delegate powers to independent agencies has been settled in numerous Court decisions since the New deal era. But it has recently come under attack by anti-regulatory groups, by their Republican allies, and even by some justices. Thomas is one of them.

He argued in dissent that the Court should hear the appeal and limit OSHA's workplace safety authority. According to Thomas, the Court's precedents violate "the Constitution’s allocation of legislative power to Congress." Hence, the Court needed to take the case to "reconsider [its] approach" to delegating regulatory authority to agencies such as OSHA.

Around the same time that Thomas sought to undo OSHA's workplace safety regulations, he dissented from the majority's generosity toward military veterans:

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In Rudisill, Thomas's dissenting opinion was joined by Alito. The Court's 7-2 majority, speaking through Justice Jackson, held that the governing statutes allowed veterans who are eligible for educational benefits under both the earlier "Montgomery" and later "Post 9/11" GI Bills to switch from the former to the more generous latter. Additionally, for those veterans being eligible under each of these GI Bills, the benefits would extend from the 36 month limitation appilicable to each one to a total aggregate period of 48 months. Jackson added that, in any event, the "pro-veteran canon" would apply if the statutory provisions were ambiguous.

Thomas, while on the one hand saying that "the statute’s text [is] complicated," nevertheless insisted that it was "ultimately unambiguous" in denying a veteran's entitlement to a 48 month benefit period. Wading through the different subsections of the governing provisions, Thomas argued that, under §3327(d)(2)(A), a veteran who switches to Post 9/11 benefits is entitled only to "the amount [of time] he had remaining for his Montgomery benefits"-- despite separate entitlements to both GI Bills due to multiple periods of service.

Thomas concluded with the additional argument that, even if the statute were ambiguous--in his view it categorically was not [Does the 7-2 divide suggest otherwise?]--the pro-veterans canon of interpretation should not apply. He took issue with "whether this purported canon should ever have a role in our interpretation."

Thus far, in the five cases discussed, we've seen Thomas opposing laws that prohibit firearm possession by domestic violators, opposing the regulation of weapons parts kits or "ghost guns," opposing laws prohibiting the possession of assault rifles, opposing OSHA's workplace safety regulations, and opposing a generous interpretation of the GI Bills. Let's be clear, in none of these cases was there an unequivocal dictate that he take the positions he did. That being so, why?

This hardening ideological jurisprudence--which has increasingly separated Thomas to the right of other political conservatives on the Court--will be equally evident in the next installment in this series. We'll look at his dissenting opinions in several criminal cases and one involving a claim of religious discrimination. No one who follows the Court will be surprised at Thomas's positions in these cases.

Once More Time: The Supreme Court Again Says Reconsider NY's Abortion Mandate!

Yes, once again, the New York courts suffered an embarrassing unanimous, summary overruling of their decisions which persistently upheld the imposition of the state's abortion coverage mandate upon religious objecting organizations, such as a Roman Catholic Diocese.

For years now, I've been discussing New York's mandate that employers include abortion coverage in their employee health insurance. I have not disguised my strong objections to the state government imposing this mandate upon religiously objecting institutions, nor my utter contempt for those rulings of the New York courts that have shown no regard for trampling on free exercise of religion. (It's only the First Amendment!)

For example, consider the first round of litigation, brought by the Albany Catholic Diocese, claiming that it was entitled to a religious exemption from the abortion mandate. The Court of Appeals, the state's highest court, summarily --i.e., without the full appellate process--dismissed the case. Here's the--hard to believe--ruling:

On the Court's own motion, appeal dismissed, 

without costs, upon the ground that no substantial

constitutional question is directly involved. [My emphasis.]

(Nov. 24, 2020.)

No substantial constitutional question?

But then, the Supreme Court, in its own summary, unanimous order--yes, all the conservative and liberals Justices--told the New York courts to try again. Here are the Justices' own words:

CERTIORARI -- SUMMARY DISPOSITIONS

20-1501 ROMAN CATHOLIC DIOCESE, ET AL. V. EMAMI, SHIRIN, ET AL.

The petition for a writ of certiorari is granted. The

judgment is vacated, and the case is remanded. [My emphasis.]

(Nov. 1, 2021.)

(For a more complete discussion and reference to previous related posts on New York Court Watcher, see, REPRISE: Religious Institutions Must Pay Abortion Coverage in NY, Nov. 1, 2021.)

In the second round of litigation on the very same matter, the New York courts again upheld the imposition of the abortion mandate upon religiously objecting institutions--i.e., holding that the religious institutions, such as a Catholic Diocese, were not entitled to the mandate's very narrow religious exemption. (New York only allows exemptions for churches and other analogous institutions, but not for faith-based organizations such as Catholic Charities.)

On this go round, the Court of Appeals at least did not say that there was no constitutional question worth its time. But the Court did, nevertheless, uphold the mandate as imposed on religiously objecting institutions. (See Roman Catholic Diocese of Albany v. Vullo, May 21, 2024.)  

Yesterday, the Supreme Court once again summarily and unanimously--yes, again, all the conservative and liberal Justices--granted the Albany Diocese's appeal (i.e., the writ for certiorari) and overruled the New York courts' insistence on upholding the abortion mandate against religious objectors and refusing to grant them an exemption.. Here it is:

ROMAN CATHOLIC DIOCESE, ET AL. V. HARRIS, ADRIENNE A., ET AL.

The petition for a writ of certiorari is granted. The

judgment is vacated, and the case is remanded to the Court of Appeals [My emphasis.]

June 16, 2025.) 

The Supreme Court ordered the Court of Appeals to reconsider the case, specifically in light of the Justices' decision earlier this month in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Comm'n. (June 4, 2025.) In that decision, the Supreme Court unanimously--yes, all the conservatives and all the liberals--overruled Wisconsin's refusal to grant a religious exemption to Catholic Charities. The state had a narrow exemption in its tax law for churches and analogous institutions whose purpose is religious practice. But the mission of Catholic Charities and similar faith-based organizations is to provide social services and perform other charitable works. It is not simply to engage in religious practices such as baptism, prayer, and proselytizing. So they were not entitled to religious exemptions. It made no difference that Catholic Charities and similar organizations are founded on religious convictions to help those in need.

The Supreme Court, in its unanimous reversal of the Wisconsin court, stressed the unremarkable constitutional principle that a state cannot pick and choose between religious beliefs and practices. As Justice Sonia Sotomayor put it for the Court, the problem with the Wisconsin law was that it

explicitly differentiat[ed] between religions based on theological practices. Indeed, [an institution's] eligibility for the exemption ultimately turns on inherently religious choices (namely, whether to proselytize or serve only co-religionists)...

Much like a law exempting only those religious organizations that perform baptisms or worship on Sundays, an exemption that requires proselytization or exclusive service of co-religionists establishes a preference for certain religions based on the commands of their religious doctrine.

In short, Wisconsin's denial of a religious exemption for Catholic Charities, like New York's denial of one to the Albany Catholic Diocese and other religious institutions, was based on unconstitutional criteria. It was effectively based on whether the state viewed the institution's religious practices to be religious enough--i.e., whether they fit the state's notion of religion.

New York's narrow religious exemption--to which the Albany Catholic Diocese was not entitled--similarly picks and chooses between religious beliefs and practices and similarly violates 1st Amendment religious freedom. The state itself acknowledged this in its final brief to the Supreme Court after the Court's Wisconsin decision:

[W] agree that, in light of the Catholic Charities opinion, some of the subject accommodation’s criteria are likely unconstitutional as applied to at least some of the petitioners in this case...It is possible that the First Amendment challenge here could be resolved by extending the accommodation at issue to petitioners, or perhaps by simply severing objectionable aspects of the criteria.

So, it is now back to the Court of Appeals. New York's high court must now ensure that the exemptions from the abortion mandate are expanded to include religiously objecting institutions, without any unconstitutional picking and choosing based on what religious institutions are religious enough. 

Let's be absolutely clear. This has nothing to do with whether one favors a woman's right to choose and the broader right of bodily integrity. Which I do, and strongly so. Instead, this has to do with how serious we are about protecting a fundamental constitutional right against government interference, and specifically, the need for freedom of religion and conscience in a free society.

Finally, let's place all this back and forth about government interference with religious freedom, religious objections, and the denial of religious exemptions in context. This continuing, seemingly incessant difficulty and confusion in religious liberty cases. A predominant cause, if not the predominant one, is Justice Antonin Scalia's opinion for the Supreme Court in (Employment Division of...) Oregon  v. Smith, 1990. The Court held that the Indian Tribe in question was not entitled to an exemption from an Oregon anti-drug law, so they could continue to use peyote in their concededly sincere religious rituals. 

Whatever one thinks of the bottom-line decision in the case, the rule announced by Scalia to govern interference with religious freedom is an outrage. The Court did not hold that the state had a compelling reason to outlaw hallucinating drugs--that's what Justice O'Connor argued in a concurring opinion. Rather, Scalia's opinion for the Court asserted that the Constitution does not protect freedom of religion against an "otherwise valid law." So, unless a law violates some other constitutional right or invidiously discriminates, that law overrides the fundamental constitutional right of religious free exercise.

As O'Connor elaborated in her separate opinion, Scalia's opinion was utterly dishonest and stripped religious liberty of the traditional protection afforded to fundamental constitutional rights. Scalia denied that strict scrutiny applied to 1st Amendment free exercise of religion--i.e., the basic constitutional principle that the government must justify its interference with any fundamental right by proving that it is necessary to achieve a compelling interest--e.g., necessary for national security, to protect against an epidemic, military discipline, and the like. He also claimed that the Court had never granted religious exemptions to an otherwise valid law. Both of those assertions were lies. Period.

As a result, although several Justices want Oregon v. Smith overruled, the Court has to do end runs around that decision. It does so, for example, by finding some discrimination in the law in question (like the Court just did in the Wisconsin case), or by finding that a law is invalid only because it violates free speech (like the Court did in the recent case involving a business owner who did not want to create a website for a same-sex marriage: 303 Creative LLC v. Elenis, 2023).

The Supreme Court should return to a straightforward strict scrutiny: if religious freedom is being abridged, the government should have to prove that 1) it has a compelling purpose and 2) it has no other way to achieve that purpose. That is the test the Court has used for a long time to protect other fundamental constitutional rights and to protect against racial discrimination.

If Oregon v. Smith is not bad enough, the New York Court of Appeals compounded the problem in this state in Catholic Charities v. Serio, 2006. (That case involved religious objections to the state's contraceptive insurance mandate.) Not only did the Court of Appeals discard strict scrutiny protection for free exercise of religion, just like Scalia did in Smith. Beyond that, New York's high court discarded any requirement that the government had to justify its abridgment of religious liberty. Instead, it ruled that the religious objector must justify his complaint. The religious objector, the Court of Appeals held, bears the burden of proving that the law's interference with the objector's religious liberty is unreasonable. Another complete reversal of traditional constitutional protection of fundamental rights.

These two decisions, the ruling in Scalia's Smith opinion and the Court of Appeals ruling in Catholic Charities, have left the constitutional right of religious liberty adrift and left each of the two courts with a tortured jurisprudence for dealing with violations of one of our most basic rights.

The Supreme Court and the Court of Appeals need to overrule these atrocious precedents.

Disclosure: I have been providing whatever small assistance and advice I can on behalf of the Albany Diocese and Albany Catholic Charities.   

Splinters in the 6-3 Supreme Court (Part 3: Amy Coney Barrett again)

Credit: Mark Schiefelbein/AP

In the first installment in this series, back in December last year, we saw that Justice Amy Coney Barrett's voting record had unmistakenly moderated. It had become less politically conservative in the most recently completed term of Court, 2023-2024, than it had been in her previous three years since her appointment to the Court. In fact, her record was the least politically conservative of the six politically conservative Justices. Beyond that, her record had grown increasingly distant from the records of the Court's two most politically conservative members, Justices Clarence Thomas and Samuel Alito. (See the graph reprinted below at *.)

In the second installment, we saw that Justice Barrett voted with the three politically liberal Justices--Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson--in several of the term's most important cases. Sometimes Chief Justice John Roberts--another moderating conservative on the Court-- was with the liberals as well, but sometimes not. So, for a few examples:

• She had joined the bare majority to refuse to halt New York's criminal proceedings against then-president-elect Trump.
• She had agreed with the liberals in dissent that some of the charges against Trump were clearly criminal and non-presidential and thus outside the scope of immunity.
• She also agreed with the liberals in dissent that disqualifying Trump from public office for insurrection under the 14th Amendment did not require an act of Congress.
• She wrote the dissent for herself, Sotomayor, and Kagan, that the January 6 Capitol rioters were guilty of "obstructing an official proceeding."
• She also wrote the dissent, joined by all three liberals, to uphold Environmental Protection Agency regulations to protect downwind states from the air pollution emitted by upwind states. 

There were others, but those few should suffice to make the point. Indeed, the point is recently being recognized by reporters covering the Court. And by political allies of President Trump and Trump himself, who are furious and calling her "weak," a "rattled law professor," a "DEI appointee," a "closet Democrat," and even "evil."

(See, e.g., Ann E. Marimow, Justice Amy Coney Barrett ignites anger on the right after ruling against Trump, Washington Post, March 6, 2025; Devin Dwyer, MAGA rage against Justice Barrett has been brewing, ABC News, June 3, 2025; Kristen Holmes and John Fritze, Trump privately complains about Amy Coney Barrett and other Supreme Court justices he nominated, CNN, June 3, 2025; Farrah Tomazin, Trump Is Melting Down in Private at ‘Weak’ Amy Coney Barrett, Daily Beast, June 3, 2025.)

As for the Federalist Society which had recommended judicial nominees to Trump, including Barrett, he condemned the former leader of the society in a post on Truth Social: "a real ‘sleazebag’ named Leonard Leo, a bad person who, in his own way, probably hates America." [Whoa! A wee bit unhinged?]

(See Nia Prater, Amy Coney Barrett Has Become a Trump-Administration Villain, New York Magazine Intelligencer, June 3, 2025.)

Early this year, a few days following the second installment in these pages, the "weak" and "rattled" Justice Barrett again broke with the Court's most politically conservative Justices. In Glossip v. Oklahoma, she concurred in the majority opinion of Justice Sotomayor in this death penalty case, that "the prosecution violated its constitutional obligation to correct false testimony."

Barrett agreed with the reasoning of the other members of the majority that the decision below must be overturned: the prosecution, not the lawyer for the defendant, has the duty to correct false testimony. And like the majority, she disagreed with the view of Thomas and Alito that the Oklahoma court had upheld the conviction on pure state law and, therefore, the Supreme Court had no right to review that decision. (She did disagree with the majority's total reversal and grant of a new trial. Instead, she argued that the case should be returned to the state court to make a factual determination whether the prosecutor actually knew that the testimony in question was false.)

In a vote that apparently especially enraged President Trump and his allies, Barrett sided with the three liberals and Roberts in Dept. of State v. AIDS Vaccine Advocacy Coalition, refusing to freeze around $2 billion in foreign aid as previously ordered by Trump.

The case arose from an executive order issued the month before. President Trump had halted the payment of foreign aid funds to federal agencies, in an effort to ensure that payments would only go to programs aligned with Trump's policies. But a district court ordered that foreign aid payments--about $2 billion worth--be made for work already completed. The Supreme Court rejected the Trump administration's request to vacate what the district court had done and to give effect to Trump's executive order. That ruling of the Court's bare majority--which included Justice Barrett--"stunned" the dissenting four conservative Justices. 

Just one more to underscore what the foregoing votes of Justice Barrett should make clear. In Trump v. J.G.G., she sided with the three liberals on the Court, dissenting from the 5-4 majority decision that lifted orders of the D.C. District Court, which had stopped the Trump administration from summarily deporting certain Venezuelan immigrants. In short, the deportations could now continue.

Barrett agreed with Sotomayor's dissenting argument that the deportations were clear due process violations, whether the challenges were brought in D.C. or Texas. She joined the dissenting opinion's warning that, "if the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief," that would violate the bare requirements of constitutional due process and of the Court's decisions--including assertions in today's per curiam opinion. Together with the three liberals, Barrett saw no good reason for the majority--the remaining five conservative Justices--to intervene in the case and interfere with the district court's decision to stop the deportations. 

These and similar votes of Justice Amy Coney Barrett are infuriating Trump allies and disappointing many other political conservatives. On the other hand, some political liberals are warming up to her and applauding her defiance of conservative expectations.

Regardless, unlike the Court's hard-core political conservatives--or liberals--she is displaying a measure of independence, unshackled from ideological purity that should be welcomed by those (of us) who decry the Court's usual, crass partisan divide. Republican Justices Anthony Kennedy and Sandra Day O'Connor were disappointments to those who preferred partisan purity. In the past, Democratic Justice Felix Frankfurter was a notable disappointment to his partisans for similar reasons.

But at least to some--including me--this independence, this lack of partisan one-sidedness, this open-mindedness, this refusal to view judging as an adversarial team sport, is something that is encouraging. One of the developments on this current 6-3 Court that is especially welcomed.

In the next few posts, we'll look at some other cracks or splinters in the Court's 6-3 partisan divide.

 * Here's that promised graph

(click to enlarge for a better view) 

Cooke Symposium 2025: Criminal Justice on Trial

The Albany Law Review Presents

The 15th Annual Chief Judge Lawrence Cooke Symposium
April 15, 2025
Albany Law School

New York's Harvey Weinstein Decision

MOLINEUX MEETS #METOO:

EVALUATING THE MEDIA’S COVERAGE OF PEOPLE V. WEINSTEIN AND THE NEW YORK COURT OF APPEALS

by Sarah Midani (Albany Law School, Class of 2025; Editor-in-Chief, Albany LawReview)

As Ms. Midani writes, the New York high court's decision to overturn Harvey Weinstein's conviction 

garnered mixed reactions from advocates against sexual violence, including those behind the #MeToo movement. Weinstein’s conviction is widely regarded as a #MeToo launching point, and the movement has highlighted the stark reality of sexual violence that many people endure. The trial court’s evidentiary rulings, with which the Court of Appeals’s majority took great issue, affected what kinds of testimony the jury was allowed to hear.

The trial judge allowed three women—who were not complainants in the original action—to testify about their own past experiences with Weinstein. All three said he sexually harassed and/or assaulted them. The problem, according to the Court of Appeals, was that those alleged incidents were not part of Weinstein’s charges. As such, the testimony triggered a New York evidentiary principle known as the Molineux rule. Under that rule, which is named after a 1901 Court of Appeals decision, the at-issue evidence would “not [be] admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant’s propensity to commit the crime charged"....

[T]he Court defended its analysis as “grounded on bedrock principles of evidence and the defendant’s constitutional right to the presumption of innocence and a fair trial.”

The article, to be published as 87 Albany Law Review 647 (2024), is accessible at:
https://www.albanylawreview.org/article/123137-molineux-meets-metoo-evaluating-the-media-s-coverage-of-people-v-weinstein-and-the-new-york-court-of-appeals