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 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 for 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.

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:

(click to enlarge for a better view)

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:

(click to enlarge for a better view)

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:

(click to enlarge for a better view)

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.

One 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.