The Supreme Court handed down an easy-to-miss order on Monday holding in favor of Larry Lamont White, a Kentucky man sentenced to death for a 1983 murder. The order in White v. Kentucky is just one paragraph long and it is paired with a dissent from Justice Samuel Alito that is also only a paragraph long.
Neither the Court’s order in White nor Alito’s dissent offer much guidance on how lower courts should handle death penalty cases in the future — the order merely requires the Supreme Court of Kentucky to reconsider its holding that Mr. White is not intellectually disabled in light of the Court’s 2017 decision in Moore v. Texas. But the White order does offer a fascinating window into the internal politics of the Supreme Court.
Alito’s dissent was joined only by Justice Clarence Thomas and Neil Gorsuch. That means that at least one, and possibly both, of the Court’s remaining Republicans voted with the majority to order a reconsideration of White’s death sentence (under existing Eighth Amendment precedents, an intellectually disabled person may not be sentenced to die).
The White order, moreover, fits into an emerging pattern within the Supreme Court. Three of the Court’s Republicans — Thomas, Alito, and Gorsuch — embrace a will-to-power approach to judging. Republicans control the Court right now, and these three men urge their fellow Republicans to use that power to achieve conservative ends.
Meanwhile, Chief Justice John Roberts and Brett Kavanaugh, the two remaining Republicans, appear to prefer a slower, more incremental approach. That does not mean that they will not eventually move the law sharply to the right. But Roberts and Kavanaugh appear less inclined to toss out longstanding precedents merely because they can.
It’s important not to exaggerate the gulf between the more nihilistic Republicans and their two more measured colleagues. Last term, before Kavanaugh joined the Court, Roberts voted with his fellow Republicans to gut workers’ ability to sue their employers, defund public sector unions, uphold Trump’s Muslim ban, and to make it nearly impossible to win a voting rights case alleging intentional race discrimination. Kavanaugh’s record as a lower court judge suggests that, if anything, he is a few steps to Roberts’ right.
There are no moderate Republicans on this Supreme Court.
Nevertheless, the divide between Roberts, Kavanaugh, and the three nihilists is real. Last month, the Supreme Court announced that it would not hear a case involving two states that sought to defund Planned Parenthood. Thomas wrote an angry dissent, joined by Alito and Gorsuch, accusing his colleagues of refusing to take up the case because they did not want to be embroiled in abortion politics.
Generally, only four votes are required for the Court to hear a case. So the fact that the Court did not take up this particular suit indicates that both Roberts and Kavanaugh voted against doing so.
Similarly, Roberts and Kavanaugh did not join an effort by their hardline brethren to halt a trial investigating whether the Trump administration is attempting to rig the Census to discourage many immigrants from participating (though it is worth noting that the propriety of this trial will be argued before the Court later this year). Roberts also did not join a Gorsuch dissent — a dissent that Thomas and Alito did join — which sought to undercut marriage equality for same-sex couples.
It should be noted that members of the Court may sometimes keep their dissents silent. So it is possible that Roberts quietly agreed with Gorsuch in the marriage case, or that either Roberts or Kavanaugh (but not both, because if all five Republicans voted the same way the Trump administration would have prevailed) agreed with the hardliners in the Census case. But there are at least some examples where we know for sure that both Roberts and Kavanaugh broke with their fellow Republicans. And Roberts, at the very least, is trying to create the impression that he does not embrace Gorsuchian disregard for precedents.
Roberts’ decision not to join Alito’s dissent in White seems especially significant. In Moore v. Texas, the Supreme Court split 5-3 on whether Texas courts properly evaluated whether a man sentenced to die is intellectually disabled. Justice Ruth Bader Ginsburg’s majority opinion held that courts must be “informed by the views of medical experts” when they weigh a claim that a particular individual is intellectually disabled. Roberts wrote the dissent, arguing that courts should pay more attention to the views of state lawmakers.
Roberts, in other words, led the opposition to the majority opinion in Moore. And yet Roberts appears to have abandoned that opposition. At the very least, he did not join Alito’s dissent from an unusual order informing the Supreme Court of Kentucky that it cannot simply ignore the Moore decision.
All of this suggests that Roberts, and possibly Kavanaugh as well, do not believe that he and his fellow Republicans should sweep away any precedent they disagree with merely because they now have the votes to do so.
That doesn’t make Roberts a great defender of precedent. The Chief joined his fellow Republicans in Janus v. AFSCME, last term’s union-busting case, and he did so despite the fact that Janus overruled a 40-year-old precedent. But Roberts’ apparent willingness to accept defeat gracefully in White suggests that there are some limits on how far the Court’s new majority will go in wiping away established law.
How long will it last?
The most important question in American law is whether Roberts and Kavanaugh’s relative moderation, at least as compared to their three most conservative colleagues, is a permanent feature of their judging — or merely a temporary mask that they’ve put on to protect the Supreme Court as an institution.
On Friday, the Court met to consider whether to take up a wide range of cases presenting hot button issues. Can states decide who is allowed to have an abortion? Are even minor burdens on gun owners violations of the Second Amendment? Can someone be fired because they are gay? Or because they are trans?
For the time being, the Court has not taken up these politically fraught cases. One possible explanation for the Court’s cautiousness is, as I wrote shortly after the Court turned aside the Planned Parenthood cases, is that “Roberts and Kavanaugh want to give the nation some time to forget about how Kavanaugh got his current job before they declare outright war on reproductive choice.”
If this theory is correct, the Court’s period of relative silence is likely to come to an end very soon. Maybe Roberts doesn’t want to relitigate a relatively minor case involving a limited subset of death row inmates, but it is unlikely that he’ll be willing to take a pass forever on issues such as abortion, or whether LGBTQ people should be safe from discrimination.