Does the U.S. Supreme Court have a 3-3-3 split?

President Trump’s three appointees to the Court were expected to result in a dramatic shift to the right . . . but it’s not that simple.

July/August 2021 Issue

Despite the high hopes of conservatives and the alarming fear of liberals, the U.S. Supreme Court’s recent term revealed that President Trump’s appointments may have more realistically resulted in a 3-3-3 split on the high court.

Though there is still time for the new justices to settle in and determine exactly where they will fall on the spectrum, Justices Kavanaugh and Barrett currently appear to have joined Chief Justice Roberts to make up the “moderate voting bloc.” While Justice Gorsuch has joined Thomas and Alito to form the “conservative voting bloc.”

As law professor Josh Blackman, of South Texas College of Law Houston, pointed out in an op-ed in Newsweek, the conservative voting bloc has publicly called out Justices Kavanaugh and Barrett on several occasions.

When the Court declined to take up a case asking whether courts can modify the rules governing elections, the three conservatives dissented, with Thomas calling it “inexplicable,” “befuddling,” and “baffling.”

When the Court asked a lower court to reconsider the legal standard used, instead of denying an appeal in a case involving the alleged use of excessive force by a police officer, the three conservatives dissented and Alito alleged that the other justices were “unwilling to… bear[] the criticism.”

The Court refused to review the case of a florist who could not, without violating her conscience, participate in celebrating a same-sex wedding. The three conservatives again dissented, publicly exposing the stance of Kavanaugh and Barrett.

In the case involving a religious foster care agency, the three conservatives criticized their colleagues for not going further to protect religious institutions and individuals. In fact, the conservatives publicly called out Kavanaugh and Barrett for lacking the “fortitude” (courage) to supply an answer to the question presented.

It is obvious that the Court did not operate as a 6-3 conservative majority during its first term with its current makeup of justices. Only time will tell if Kavanaugh and Barrett will be more like Roberts or their colleagues to the right.

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