The Voting Rights Decision--A Fait Accompli

Let's look at the latest voting rights decision before returning to Roberts vs. Trump.

There is understandable dismay and outright disgust with last week's voting rights decision--mine included. But any shock and surprise about Louisiana v. Callais, whether from the dissenting Justices or liberal commentators, seems a bit forced. Anyone following the persistent direction of the Court's decisions on racial preferences over the last 40 years had to know that this was inevitable.

In short, the Court decided that the Voting Rights Act does not require and, more critically, constitutional Equal Protection does prohibit the consideration of race in drawing congressional districts. And it makes no difference if race is taken into account for the benign purpose of protecting the voting rights of minorities. Nope. Creating or preserving Black-majority districts is discrimination on the basis of race against non-Black voters.

 

At least since 1986, with conservative appointees of Presidents Nixon and Reagan taking control of the Court, the predominant view among the Justices has been a discomfort, if not outright hostility toward so-called "reverse discrimination." Race-conscious policies, even to redress the lasting effects of the historic discrimination against Blacks in this country, have been viewed as invidious--even if sometimes tolerated--discrimination on the basis of race.

The protection of "insular and discrete minorities" had previously been understood to be the primary purpose of the Constitution's post-Civil War guarantee of equal rights. The elimination of government-approved mistreatment of minorities was recognized as the motivating policy underlying the Equal Protection Clause of the 14th Amendment. The most celebrated footnote in Supreme Court history--Justice Harlan Stone's footnote 4 in the Court's 1938 decision in U. S. v. Carolene Products Co.--articulated that rubric. 

Accordingly, the protection of historically oppressed minorities remained established constitutional law for a while. But later, ideologically conservative Republican appointees began to revise the aim of equal protection and the concept of constitutionally repugnant discrimination. 

In its 1986 decision in Wygant v. Jackson Bd. of Educ., with Nixon and Reagan appointees now dominating the Court, a bare majority of the Justices invalidated a program that provided preferential protection against layoffs to Black employees. Those minority workers had been recently hired to remedy past discrimination in hiring. But this benign racial preference was viewed as unconstitutional discrimination against white employees. The Court made clear that protection of the white majority would be considered just as compelling as the protection of the racial minority--regardless of which group had suffered the historic discrimination that led to the Equal Protection Clause.

Within a short time thereafter, retirements from the Court gave Reagan the opportunity to fill vacancies with like-minded appointments. Especially notable were Reagan's elevation of William Rehnquist to replace the retired Chief Justice Warren Burger, and his appointment of Antonin Scalia to fill Rehnquist's former position. Like Reagan, these two appointees were mostly unsympathetic to the civil rights emphasis on protecting Black Americans.

Let's remember--as some have recalled to bring realism to the nostalgia over Ronald Reagan--that shortly after his election, he opposed extending the Voting Rights Act and sought to dilute its provisions until he was politically embarrassed to do otherwise. Remember also that he actually began his presidential campaign in Philadelphia, Mississippi where three civil rights workers had been murdered, and he used the occasion to exalt states' rights and to criticize the civil rights laws as an insult to the South. And just as revolting (in my humble view)--in a reversal of Nixon and Carter policy--Reagan supported federal support for "Christian" colleges and universities that openly practiced racial segregation. (The Supreme Court ruled against his position and upheld the Nixon-Carter policy in Bob Jones Univ. v. United States, 1983.) 

Reagan's selections of Rehnquist and Scalia were fitting. Rehnquist, when a law clerk at the Supreme Court, wrote a memo in support of the "separate but equal" doctrine and in opposition to the ultimate decision in Brown v. Board of Education to end racial segregation. And while on the Court himself, he was the lone dissenting vote in the Bob Jones Univ. case to restore federal support for racially segregated colleges and universities.

As for Scalia, it is difficult, if not impossible, to find a single vote in which he supported civil rights for Blacks. Whether the cases before the Court involved prosecutors removing Blacks from juries, or universities trying to diversify racially to remedy past discrimination in admissions, or any other civil rights-related issue, Scalia consistently sided against the interests of Black Americans.

So, it was not at all surprising what the Court ruled, with Chief Justice Rehnquist and Justice Scalia in the majority, in its 1989 decision in City of Richmond v. J. A. Croson Co. As in Wygant, three years earlier, the Court invalidated another remedial racial preference program. Over the three liberal Justices in dissent, the majority held that the program to set aside 30% of the city's construction contracts to minority-owned businesses violated Equal Protection. The Court reinforced its Wygant decision that any racial classification--whether it discriminated against minorities or sought to redress that historic discrimination--was constitutionally suspect and nearly impossible to justify.

From there to the Court's rulings against affirmative action in school admissions was simply a natural progression. In 2003, in a pair of decisions--Gratz v. Bollinger and Grutter v. Bollinger--the Court severely limited the benign consideration of race in college and university admissions. By a vote of 6-3 in Gratz, the Court invalidated an admissions program where race seemed to be a dispositive factor. In the Court's words, nearly every “underrepresented minority” was admitted. And by a bare 5-4 vote in Grutter, the Court upheld an admissions program where race was a single factor among many in a very "individualized review" of each applicant. The four dissenters condemned the admission of--in the words of the major dissenting opinion by Chief Justice Rehnquist--"less qualified underrepresented minorities," whatever the purported purpose.

For the next several years, the Court seemed ready to end racial considerations in admissions policies entirely. It did so unqualifiedly in 2023 in SFFA v. Harvard and Univ. of North Carolina. The plaintiffs--felicitously self-named "Students for Fair Admissions"--did not seek fair admissions at all in the case, but only an end to any consideration of race. (Not athletes, not legacies, not donor families, etc., etc.) The 6-3 majority spoke through the opinion of Chief Justice John Roberts--who, by the way, was a law clerk for Rehnquist, and then worked in the Reagan administration DOJ, where he advocated against the Voting Rights Act. (Not surprisingly then, ten years before SFFA in the 2013 case of Shelby County v. Holder, he wrote for the 5-4 majority to invalidate a key section of the Voting Rights Act. The required federal "pre-clearance," before election laws could be changed in sections of the country that had historically practiced voting rights discrimination, was now, according to Roberts, unconstitutionally outdated.)

In SFFA, Roberts' argument for the majority against all racial preferences--whether to redress historic discrimination or to insure diversity of the student body--was the Constitution's supposed mandate for "color blindness." As Roberts explained it, "Eliminating racial discrimination means eliminating all of it...The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color." 

The three dissenters--liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson--argued that race consciousness had actually advanced the Constitution's guarantee of equality. They also reminded the majority that the very purpose of the Equal Protection Clause was to protect the newly freed Black minority, not exactly color blindness.

Now, three years later, last week in Louisiana v. Callais, the very same majority and minority have made the very same arguments.

For the same majority: the consideration of race in creating voting districts violates Equal Protection, even for the benign purpose of remedying past discrimination. Preferring one race necessarily disfavors another. Discrimination can't mean one thing when it hurts Black voters, and something else when it disfavors whites. Elimination of racial discrimination means eliminating all of it.

For the same dissenters: race consciousness to create and preserve majority Black voting districts helps to insure the Constitution's guarantee of equality in voting. That guarantee, foremost, was the protection of the historically discriminated against Black minority. Prohibiting any consideration of race in redistricting hinders, not bolsters, constitutional equality.

The fact is, regardless of how devastating and distressing this most recent voting rights decision might be to those who actually support the voting rights laws--again, me included--it's no surprise at all. Anyone who has followed the direction of the Court for the past few decades could have predicted the majority and dissenting opinions. Even written them.

Louisiana v. Callais was the preordained consequence of the relentless whittling away of the civil rights era. If the commitment of that era was to eliminate, as much as possible, the remnants of this country's savage mistreatment of Black persons, the commitment now is to treat race as though the remnants of that savage mistreatment are now all gone. There are consequences of a 6-3 politically conservative Republican majority. And there are consequences of that growing body of decisions that has been pointing one way for at least 40 years.

We will now witness the aftermath of Louisiana v. Callais. Like the decision itself, the aftermath shouldn't be a surprise.

Roberts vs. Trump: Barely Disguised Contempt

Olivier Douliery/AFP via Getty Images

Linda Greenhouse, the Pulitzer Prize winning former Supreme Court reporter for the New York Times, recently put it this way: the Chief Justice’s “vexation with Mr. Trump verges on acute concern.” [Linda Greenhouse, Roberts Is Losing Patience With Trump, NY Times, Feb. 24, 2026.]

Indeed, the “gratuitous” paragraph Greenhouse excerpted, from Roberts’ majority opinion rejecting Trump’s asserted tariff power, reveals at least “vexation.” Here are several such lines from that paragraph and the preceding one:

[T]he President imposed a 25% duty on most Canadian and Mexican imports and a 10% duty on most Chinese imports. [He also] imposed a duty “on all imports from all trading partners” of at least 10%. Dozens of nations faced higher rates. And these tariffs applied notwithstanding any extant trade agreements.

One month after imposing the 10% drug trafficking tariffs on Chinese goods, he increased the rate to 20%. One month later, he removed a statutory exemption for Chinese goods under $800. Less than a week after imposing the reciprocal tariffs, the President increased the rate on Chinese goods from 34% to 84%. The very next day, he increased the rate further still, to 125%...The President has also shifted sets of goods into and out of the reciprocal tariff framework (exempting from reciprocal tariffs beef, fruits, coffee, tea, spices, and some fertilizers). And he has issued a variety of other adjustments. See, e.g., extending “the suspension of heightened reciprocal tariffs” on Chinese imports.

[Learning Resources, Inc. v. Trump (2026).]

The obvious--whether actually gratuitous--point is that this is capricious conduct of an erratic man.

But the tariffs case was hardly the first time that Chief Justice Roberts has shown “acute concern” about Trump. A notable illustration from back in Trump’s first term was Roberts’ opinion for the Court in the Muslim Ban—I mean “Travel Ban”—case. While his majority opinion upheld Trump’s immigration restrictions at issue in that case, Roberts took pains to point out that his opinion was not an endorsement of “a particular President,” but about “the authority of the Presidency itself.”

Even then, Roberts highlighted the argument that “this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition.” And though he emphasized that the constitutional question in the case was "not whether to denounce the statements,” Roberts’ denunciation was clear.

In a few paragraphs, perhaps as “gratuitous” as the ones in the Tariffs case, Roberts recapped many of Trump’s ugly statements about Muslims. Here’s part of what Roberts included in his opinion:

[W]hile a candidate on the campaign trail, the President published a “Statement on Preventing Muslim Immigration” that called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on”…Then-candidate Trump also stated that “Islam hates us” and asserted that the United States was “having problems with Muslims coming into the country.” Shortly after being elected, when asked whether violence in Europe had affected his plans to “ban Muslim immigration,” the President replied, “You know my plans. All along, I’ve been proven to be right” …[O]ne of the President’s campaign advisers explained that when the President “first announced [the first proposed ban], he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally’…[A]fter issuing [the first replacement order], the President expressed regret that his prior order had been “watered down” and called for a “much tougher version” of his “Travel Ban.” Shortly before the release of the Proclamation, he stated that the “travel ban . . . should be far larger, tougher, and more specific,” but “stupidly that would not be politically correct” …[Thereafter,] the President retweeted links to three anti-Muslim propaganda videos.

[Trump v. Hawaii (2018).]

Roberts immediately contrasted Trump’s conduct with that of other presidents who used their power to speak inspiringly to the Nation “to espouse the principles of religious freedom and tolerance on which this Nation was founded.” Notably, he gave examples of presidents, beginning with Washington, who spoke out against bigotry against Jews and Muslims. But then, pointedly, he remarked that “Presidents [have] performed unevenly in living up to those inspiring words.” Trump, anyone?

Beyond his apparent contempt for the man now occupying the White House for a second time, Roberts has also written opinions for the Court or voted in support of such opinions that rejected Trump’s pet policies or his defenses in cases against him. Despite the conventional wisdom otherwise, Roberts and his Court have actually stymied Trump and his administration numerous times in recent years, in addition to the tariffs case.

We’ll take a look at some of these in the next post. 

Amy Coney Barrett (Part 2)--"Non-Hack"

Source: Elizabeth Frantz/NY Times

“The Supreme Court’s second-newest justice is proving herself to be a non-hack —to the increasing consternation of MAGA.”

That's Matt Ford, Associate Editor of the politically liberal The New Republic magazine.

But it's not just liberals who have nice things to say about Justice Amy Coney Barrett. Edward Whelan, former law clerk to Justice Antonin Scalia, holder of the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center, and one of the nation's foremost conservative legal commentators had this to say: "She’s a careful, precise thinker, and she’s been thrust into this very volatile environment.” 

Jodi Kantor, who has reported behind-the-scenes stories about the Supreme Court for the New York Times, compared Barrett favorably to others on the Court: "Justice Barrett has favored a more deliberate approach than some of her colleagues."

These views of Amy Coney Barrett are far more common among the less-partisan observers of the Court than those of the uber-MAGA crowd, some of which were included in the previous post. (See Amy Coney Barrett (Part 1)--"Rattled Law Professor.")

Again, the facts. Here is my graph from the previous post that shows how Justice Barrett has been voting:

(click to enlarge for a better view) 

In the 29 ideologically laden cases last term--i.e., those clearly identifiable as "politically conservative" versus "politically liberal" among the 64 full-appeals decided--Barrett was unmistakably on the conservative side of the Court. No doubt about that when her 62% conservative voting is contrasted with the 7% and 10% conservative records of Justices Jackson and Sotomayor, respectively. Of course, her record is also a far cry from the 93% conservative voting of both Justices Thomas and Alito. So yes, it's clear to see why she would be a disappointment to the partisans who expected her to be or hoped her to be far more ideologically disposed.

But worse than that for the most die-hard Trump supporters is her record in cases directly involving Trump himself or his policies. Let's take a look at Barrett's record, as well as those of her colleagues, in those cases.

There were 22 such cases. These included 16 that were decided on an emergency basis--i.e., the so-called "shadow docket," where there were no arguments held and no full briefing. Just a petition for relief by a party unhappy with a decision by a lower court, and a vote in conference by the Justices to grant or deny the request. 

In fact, most of the cases directly involving Trump or his policies were decided that way last term. And most of the time, the Court's majority gave absolutely no reason for its decision. As the headline from one of veteran Court reporter Adam Liptak's column summarized the situation: “Supreme Court Keeps Ruling in Trump’s Favor, but Doesn’t Say Why.” (NY Times, July 16, 2025.) 

Here's what the voting looked like in all those 22 "Trump Cases"--full appeals and "emergency" decisions: 

(click to enlarge for a better view) 

As was clear from the previous graph showing Justice Barrett's 62% politically conservative voting in the full appeals, her 68% voting in favor of Trump and his policies, as depicted above, is hardly the record of a political liberal. Certainly not when contrasted with the 0% and 5% pro-Trump voting of Justices Jackson and Sotomayor.

But neither is Barrett's record even close to the 100%--yes, 100%--pro-Trump voting of both Justices Thomas and Alito. No, Justice Barrett's voting in the cases directly involving Trump or his policies--full appeals plus emergency decisions--is not a record of a blind partisan. Not a record of a blind Trump loyalist. Hence, the ire of the uber-Trumpists and the respect of just about everyone else. Even cautious optimism among some liberals.

By way of illustration, Barrett's record this year included voting in a 5-4 majority to order the Trump administration to unfreeze nearly $2 billion in foreign-aid reimbursements, in another 5-4 majority refusing to recognize Trump's claimed presidential-elect immunity, in a 6-3 majority to preclude presidential hiring and firing of certain "lesser" executive officials, and in dissent with the three liberal Justices to uphold broad authority of the Environmental Protection agency. 

Lest it be thought that Justice Barrett's voting last term could have been an aberration. Perhaps it was a particular mix of cases that resulted in her voting "pro-Trump" much less than other Republican appointees on the Court. It turns out that Barrett's record in cases involving Trump or his policies has consistently been much less pro-Trump than some of her colleagues.

Indeed, eminent Supreme Court scholar Lee Epstein, who probably tracks the voting records of the Justices more closely than anyone else, has compiled all the votes on former and current President Trump since Justice Barrett was appointed to the Court--by Trump--in 2020. Here's what Lee Epstein and her colleagues found: 

(click to enlarge for a better view) 

According to the Epstein & Colleagues calculations, Barrett has voted pro-Trump less than any other Republican appointee. Her 59% record since she joined the Court is not only just above 50-50 pro-Trump, but it is a far cry from the 94% for Justice Alito and the 88% for Justices Gorsuch and Thomas.

To be sure, her voting is also a far cry from the heavily anti-Trump records of Justices Sotomayor, Jackson, and Kagan. But still, Barrett's record is hardly one to be applauded by the MAGA crowd or even the more moderate Trump partisans. 

A "rattled law professor," "Amy commie Barrett," "evil," and "a disgusting fraud." Or perhaps a "non-hack," "careful, precise thinker," one who "favor[s] a more deliberate approach than some of her colleagues."

Well, the facts of Justice Barrett's voting record demonstrate that she is certainly a political conservative. She wouldn't be confused with a liberal--let alone a communist. Except by the most ideologically or politically fanatical out there.

But neither does Justice Barrett's record confirm what many political liberals feared she would be. Nor does it confirm the view adhered to by many political liberals that she remains hopelessly tied to the right wing of the Court. Conservative, yes. But also a Justice who, like Justices Sandra Day O'Connor and Anthony Kennedy before her--or even John Marshall Harlan II before them--has a strong, confident, independent streak. She has shown herself to be unafraid and unhesitant to break from her usual or expected ideological allies on some of the most politically-charged cases before the Court.

Amy Coney Barrett (Part 1)--"Rattled Law Professor"

Source: Allison Robbert/NY Times

The complete line: "She’s a rattled law professor with her head up her a**."

By the way, that's from a gentleman named Mike Davis, speaking on Steve Bannon's podcast. This Davis fellow actually served as the head counsel for nominations for the Republican Chair of the U.S. Senate Judiciary Committee. Shortly before that, he had urged that Neal Gorsuch be appointed to the Supreme Court, and then he was hired by Gorsuch to be his law clerk.

Davis & Gorsuch, hmm!

[In all fairness to Justice Gorsuch, Davis only lasted, for whatever reason, a few months in Gorsuch's chambers.]

Davis is hardly the only supposed "conservative"--i.e., here, referring to a Trump die hard--who's unhappy with Justice Barrett.

There's the oh-so dignified "Catturd"--his trademark--Phillip Buchanan, who posted this: "Amy Commie Barrett—she’s been an ungrateful, backstabbing POS since day one."  So she's a backstabber, an ingrate, and....a communist? Well, she's each of those because she doesn't vote in support of everything and anything that Trump and his administration try to do. Oh, also, she's "an Absolute disgusting fraud."

Then there's the social-media "influencer," Michael Cernovich, famous among other reasons for calling date rape "a liberal fiction." He summarised his thoughtful appraisal of Justice Barrett this way: "She is evil." So more than rattled or ungrateful or even disgusting. She's actually evil!

Mark Levin, the FOX News host, was a bit softer in his assessment: "The power has gone to her head."

Then there's Trump confidant and travel companion, Laura Loomer, who was among those who figured that their disappointment was to be expected: "Amy Coney Barrett was a DEI [diversity, equity, and inclusion] appointee." 

And according to numerous sources, Trump himself has been complaining about Barrett--as well as his other appointees for not marching in lockstep. In fact, he's expressed his fury about Leonard Leo, the leader of the Federalist Society. Trump apparently blames Leo for his advice on judicial appointees. Trump has ranted that Leo is "a real sleazebag...who in his own way probably hates America."

But back to Barrett.

Beyond all this unhinged commentary--along with the vicious and vile outpourings of agreement by the commentators' fans--is Barrett's record. Here is how she, as well as her colleagues, have been voting:

 (click to enlarge for a better view) 

This graph represents the Justices' voting and the Court's decisions in all 29 "conservative" versus "liberal" cases last term. That is, the 29 cases which--after examining all 64 full appeals decided in the Court's most recent term--could be identified as having an issue with a clear politically "conservative" versus politically "liberal" side.*

 *[The terms "liberal" and "conservative" are used here, as in judicial studies generally, to identify patterns, social and political, reflected in the decisions and votes of judges and the courts on which they sit. See e.g., my discussion, ‘Liberal’ Justices, ‘Conservative’ Justices, in  Supreme Shift: What the 6-3 Conservative Majority Means Going Forward, 93 NYSBA Journal 9 (Jan./Feb. 2021).

This is especially true and revealing when considered over the course of ideologically charged “hot-button,” issues where, for example, “conservative” Republican politicians and voters would typically support one position, while “liberal” Democratic politicians and voters would typically support the other.]   

As the graph shows, Justice Barrett can hardly be viewed as a liberal. Compare her voting record to that of the two unquestionably liberal Justices, Jackson and Sotomayor. They supported the conservative position in only 7% and 10% of these cases, repectively. Barrett did so much more regularly and, indeed, more than half of the time; 62% in these close, divided cases. 

To be sure, Barrett's voting record is a far cry from that of the staunchly conservative Justices Thomas and Alito--both at 93% conservative. Apparently, that's the kind of voting her right-wing critics wanted and what many of them, including Trump, were expecting. 

Beyond that, what is perhaps the most telling aspect of Justice Barrett's record, at least for the fury within the Trump camp about her, is her voting in those cases specifically involving Trump, or involving policies especially advanced by him and his administration. Think immigration, firings without cause, environmental regulations, witholding funds from states that don't embrace his policies, etc. 

In the next post, we'll focus on Barrett's and her colleagues' voting in those cases. 

[For those of you experiencing deja vu--Yes, Yogi, all over again--I have written about Justice Barrett previously, and about aspects of her voting record at that point. See Part1: Amy Coney Barrett; Part 2; and Part 3.]

Splinters in the 6-3 Supreme Court (Part 5: Clarence Thomas cont'd)

Credit: @realDonaldTrump

In Part 5 of this series, we saw that Justice Clarence Thomas broke with other political conservatives on the Court--sometimes joined by one of them--to dissent against a majority consisting of both liberal Democratic and conservative Republican appointees. In those cases, we saw that he argued against gun restrictions on domestic abusers, against restrictions on weapons-parts kits or "ghost guns," and against restrictions on assault weapons. He argued against workplace safety standards promulgated by the Occupational Safety and Health Administration, and he even contended that the statutes providing for the GI Bill should be construed narrowly to limit veterans' benefits.

Connect the dots!

Here are a few additional recent cases that exhibit an unmistakable pattern:

(click to enlarge for a better view)

In his dissenting opinion in Glossip--joined by Justice Alito--Thomas protested that the Supreme Court had no authority to review the state court conviction and death sentence. He explained that here, Oklahoma's highest court in criminal appeals--i.e., the Court of Criminal Appeals--had upheld the conviction and death sentence on the basis of "adequate and independent" state grounds, not federal law. Once a state court did that, the Supreme Court had no jurisdiction, according to Thomas.

But the majority of the Court had a different view. Federal constitutional due process, guaranteed against the states through the 14th Amendment, was violated in this case. The state prosecutor had knowingly presented false evidence to the jury--i.e., the lies of the actual killer. That violated the constitutional guarantee of due process, because it deprived the death inmate of a fair trial.

The majority opinion of Justice Sotomayor was joined by the other two Democratic appointees, Justices Kagan and Jackson, as well as by two Republican appointees, Chief Justice Roberts and Justice Kavanaugh. Justice Barrett agreed with the majority regarding the due process merits of the case, but she wrote separately to argue that the state court should be allowed to reconsider the facts. (Justice Gorsuch did not participate.)

Thomas not only disagreed that the Court had power to review the decision below, but he additionally disagreed that there was any due process violation. He insisted that the false testimony made no difference in the trial.

Another death penalty case from Oklahoma:

(click to enlarge for a better view)

Justice Thomas's dissent in Andrew v. White--this time joined by Justice Gorsuch--was based on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, federal courts may not grant habeas corpus relief to a state criminal defendant unless the state court decision in the case violated clearly established federal law. According to Thomas, it is not clear under the Supreme Court's precedents that the admission of prejudicial evidence, even if it renders a trial fundamentally unfair, violates federal constitutional due process. Thomas reasoned that, while there might be some "general rule" about prejudicial evidence and fair trials, there is no "specific legal rule" that justifies habeas relief.

Beyond that, Thomas argued, as he did in Glossip discussed above, that the prejudicial evidence--here, irrelevant, inflammatory information about the defendant's sex life--made no difference. He agreed with the Oklahoma court that the evidence of guilt that was relevant was so overwhelming, that any error in admitting the prejudicial evidence was harmless.

However, the 7-2 majority, in a per curiam opinion, held that clearly established federal law had indeed been violated. As they explained, the Supreme Court had already held in several previous decisions that a "prosecutor's prejudicial or misleading statements violate due process if they render a trial or capital sentencing fundamentally unfair." Moreover, addressing Justice Thomas's argument about a general versus specific rule, the majority added that “certain principles are fundamental enough" that they can "apply with obvious clarity to the specific conduct in question.” According to the majority, that was the case here: the due process protection against a fundamentally unfair trial does not require any "interpretation or extension of this Court’s cases"--that principle is clear.

Another AEDPA case involving prejudicial evidence:

(click to enlarge for a better view)

In Davis v. Smith, Justice Thomas--joined by Justice Alito--argued in dissent that the Court should have granted certiorari, should have summarily reversed the federal appeals court's grant of habeas corpus, and should have reinstated the defendant's convictions. According to Thomas, the 6th Circuit Court of Appeals had disregarded the strict limits that AEDPA places on federal courts to invalidate state court decisions. If any "fairminded jurist" could conclude that the state court complied with Supreme Court precedents, then a federal court may not disturb the state court decision.

Here, the state's appellate court had found that the victim's identification of the defendant as her attacker was reliable. That court had rejected claims that the identification procedure in question was unduly suggestive. According to Thomas, the 6th Circuit should have accorded "substantial deference" to the state court's conclusion and affirmed its ruling, just as AEDPA requires. Instead, the 6th Circuit criticized the state court for merely citing Supreme Court precedent without providing an explanation of how it was applied. But Thomas insisted that "a state court need not explain its reasoning at all;" a federal court should focus only on the state court's "bottom-line decision.”

The 7-2 majority had a different view. It did not believe that the 6th Circuit's decision needed to be reversed and the convictions reinstated. Indeed, despite Justice Thomas's arguments to the contrary, there were pretty obvious reasons to leave the 6th Circuit's decision alone. Even as Thomas had recounted the facts in his dissent, the way in which the defendant was identified seemed to irreversibly taint the state prosecution's case and to constitute reversible error.

As Thomas acknowledged, the victim had been visited by a police officer while she was recovering from her injuries. The officer told her, “I think I found out who did this to you.” The officer then showed the victim a photo of the defendant. He told the victim that the defendant's DNA was found in her home, and that the defendant is “very violent” and “hoping you’re dead.” At some point, the victim responded that she either dreamt or remembered that the defendant had attacked her. 

The 6th Circuit found that the police conduct in getting the victim to identify the defendant as her assailant was irreparably suggestive. The Supreme Court's seven-Justice majority--the three liberals and four of the conservatives--chose not to disturb that conclusion. Thomas disagreed and insisted that the 6th Circuit had to be reversed and the state court convictions upheld.

Two of Justice Thomas's dissents came in other criminal law-related cases, where municipal law enforcement was sued for constitutional violations:

(click to enlarge for a better view)

In his dissenting opinion in Chiaverini, Justice Thomas--joined by Justice Alito--repeated an argument he had made in an earlier case, that a claim of malicious prosecution was not a 4th Amendment claim. Therefore, according to Thomas, it could not be the basis for a §1983 lawsuit that a constitutional right had been violated. A malicious prosecution, Thomas insisted, bore little resemblance to an unreasonable seizure, which is what the 4th Amendment prohibits. 

Thomas elaborated that a baseless prosecution is the essential ingredient of the tort of malicious prosecution. A baseless detention is something entirely different. For that reason, regardless of any baseless arrest or baseless pretrial detention alleged in this case, the claim of malicious prosecution does not fit a claim of a 4th Amendment violation. (Justice Gorsuch wrote a very brief, separate dissenting opinion, similarly arguing that the common law tort of malicious prosecution was not the same as a 4th Amendment violation.)

That formalistic argument of Thomas (and Gorsuch) was readily dismissed by the 6-3 majority. Speaking through Justice Kagan, the majority explained that a §1983 malicious prosecution lawsuit, such as the one brought in this case, is in fact based on a 4th Amendment unreasonable seizure. It is based on an arrest and detention unsupported by probable cause to believe a crime had been committed. Stated otherwise, the “gravamen” of such a §1983 wrongful prosecution claim is “the wrongful initiation of charges without probable cause” that results in an illegal arrest.

The specific issue in this appeal was actually something different. It was whether the §1983 lawsuit, based on an arrest and detention on unfounded charges, was defeated if there was a charge that was supported by probable cause. The majority answered no; the cause of action still survives. As illustrated by the majority: the 4th Amendment is violated "if an invalid charge—say, one fabricated by police officers—causes a [pre-trial] detention either to start or to continue." Those were the facts alleged here. 

That allegation was not disputed by Thomas. (Or by Gorsuch.) Instead, Thomas dissented to complain that the §1983 cause of action, as upheld by the majority, "mixed...legal frameworks.

Thomas dissented on similar formalistic "legal frameworks" grounds in another §1983 case:

(click to enlarge for a better view)

An 8-1 majority in Gonzalez v. Trevino reaffirmed its rule regarding retaliatory-arrest. That is, an unconstitutional arrest can occur even when there is probable cause. If others who had engaged in the very same misconduct were not arrested, then the arrest of an individual to retaliate for that person's protected expressive activities would violate the 1st Amendment. That was precisely the basis for the §1983 lawsuit here.

All of the Justices except Thomas joined the Court's per curiam opinion. (Justices Alito, Kavanaugh, and Jackson also wrote separately to elaborate.)

In dissent, Thomas argued that any probable cause to arrest, no matter if others were charged or not, should defeat a retaliatory claim. Similar to his formalistic protest in Chiaverini discussed above, Thomas insisted that a constitutional claim for retaliatory arrest must be based on the same essential element as its common law analogues of false imprisonment, malicious arrest, and malicious prosecution. They all require the lack of any probable cause. Moreover, according to Thomas, an improper retaliatory motive makes no difference. For Thomas, the only legitimate focus is the manner in which the process is executed, not the underlying purpose for executing it.

Thomas's usual ally, Justice Alito, authored a concurring opinion further clarifying the reasons for the majority's ruling. He repeated what the Court had explained in an earlier decision: officials "might exploit the arrest power as a means of suppressing disfavored speech." Thomas wanted that precedent overturned in order to render the motive for an arrest irrelevant. 

Connecting the dots: In each of the criminal appeals, Thomas sided with the prosecution, even when it knowingly presented false evidence, even when it presented highly inflammatory and irrelevant evidence, and even when it relied on a victim's identification of the defendant that was irreparably tainted by police suggestion. In the §1983 cases, he sided against individuals whose constitutional rights were violated, whether the individual was arrested and detained on baseless charges, or whether the individual was charged with an otherwise unenforced charge in retaliation for disfavored political speech.

In all of the cases discussed in this and the preceding installment in this series, Justice Thomas dissented against majorities that included not only the liberal Democratic appointees on the Court, but customary conservative Republican allies as well. And what did he consistently disagree with? In all of these dissents, he disagreed with rulings intended to protect against gun violence or against constitutional violations. Firearms in the hands of domestic abusers, assault weapons, untraceable "ghost guns," fundamentally unfair criminal trials, hopelessly tainted identifications, and highly inflammatory irrelevant evidence--Thomas took issue with decisions upholding protection against each of these.

To be sure, Thomas did articulate legal arguments in support of his positions in all of his dissents. And unless one is ideologically blind, it must be acknowledged that the majority could legalistically have decided these cases either way. Whether wisdom and equity would strongly favor one decision over the other is a separate, if perhaps the most critical, consideration in these legally-close cases.

With that in mind, the specific point here is that, whatever the wisdom and equity of the majority in each of the cases discussed, Thomas's sympathies lay more with unabridged gun rights than with protection against gun violence, and more with unimpeded prosecution of crime than with the constitutional rights of the accused. And Thomas's record evinces such sympathies to be much more unwavering than those of other political conservatives on the Court.