For the media villagers who assume that they can predict conservative v. liberal 5-4 votes on the Supreme Court, today was one of those days that proves you wrong. There were some splits today that made for some strange bedfellows following that preconceived formula.

The first opinion is a 5-4 decision that at first blush appears to follow this formula in Manhattan Community Access Corp. v. Halleck, from Justice Kavanaugh for the majority. Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan. The Second Circuit is reversed “in relevant part,” and the court sends the case back for further proceedings consistent with their opinion. The majority holds that Manhattan Neighborhood Network, which operates a public access channel in Manhattan, is not a state actor subject to the First Amendment. Justice Kavanaugh emphasizes that the First Amendment’s prohibitions apply only to state (governmental) actors and concludes that the threshold requirement of state action is missing here. Kavanaugh writes that the producers’ main argument is that the channel was exercising a “traditional, exclusive public function when it operates the public access channels on Time Warner’s cable system in Manhattan.” “We disagree,” he says. This was a case in which the public-access channel was sued after it suspended two people who produced a film that was critical of the channel from access to the channel’s facilities and services.


This is the opposite lineup one might expect — the conservatives finding that the First Amendment has no application, with the liberals voting the other way — given all the talk about conservatives “weaponizing” the First Amendment to limit control regulations of communications businesses.  On the other hand, the end result here is limiting suits against a communications enterprise. So in the end, business triumphs over employees again! That explains the conservative majority.

The second opinion is a plurality opinion in Virginia Uranium v. Warren. The judgment of the Fourth Circuit is affirmed, but the vote is complicated. Justice Gorsuch, joined by Justices Thomas and Kavanaugh, holds that the federal Atomic Energy Act does not preempt a Virginia law banning uranium mining altogether. Justice Ginsburg writes a concurring opinion in the judgment, which is joined by Justices Sotomayor and Kagan. Justice Roberts dissents, joined by Breyer and Alito. It’s safe to say no one had this lineup on their bingo card.

The third opinion is a 7-2 decision in Gamble v. United States, from Justice Alito joined by Justices Roberts, Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Thomas has a concurring opinion. Justices Ginsburg and Gorsuch have dissenting opinions. The majority declines to overturn the longstanding “dual sovereignty” doctrine, which allows two sovereigns — for example, state and local governments — to prosecute someone for the same conduct. (Good news for the state of New York pursuing the Trump crime family at the same time as the federal Southern District of New York). Justice Gorsuch continues his pattern of both dissenting from his conservative colleagues’s decisions and picking up strange bedfellows for his views, i.e., “Notorious RGB.” Her dissent is not a huge surprise in light of her dissent in Puerto Rico v. Sanchez-Valle.

Justice Thomas’s concurrence is a disturbing diatribe about his rejection of the legal doctrine of stare decisis, which would undermine the role of settled precedent and allow a bare majority of the court to say “the law is whatever we say it is,” with the law changing with each shifting five vote majority on the court. Nothing would ever be finally decided, and always subject to relitigation with a new court majority. Here is his opening:

I write separately to address the proper role of the doctrine of stare decisis. In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law. It is always “tempting for judges to confuse our own preferences with the requirements of the law,” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 3), and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises “force” and “will,” two attributes the People did not give it. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (capitalization omitted).

We should restore our stare decisis jurisprudence to ensure that we exercise “mer[e] judgment,” ibid., which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.

For those of you rightfully worried about Trump’s judicial nominees to the federal courts being unwilling to state that Brown v. Board of Education is settled precedent (and some nominees indicating they may disagree with the reasoning of the court), Thomas’s formulation of stare decisis is deeply disturbing. Thomas is directly taking aim at the same-sex marriage decision in Obergefell v. Hodges, from which he dissented. Thomas would reverse these civil rights if he could. Never has the court reversed civil rights once granted. “Eternal vigilance is the price of liberty” – American Abolitionist and liberal activist Wendell Phillips, speaking to members of the Massachusetts Anti-Slavery Society on January 28, 1852.

The fourth opinion is a 5-4 decision in Virginia House of Delegates v. Bethune Hill, from Justice Ginsburg for the majority. Ginsburg is joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch. Justice Alito dissents, joined by Justices Roberts, Breyer, and Kavanaugh. Again, it’s safe to say no one had this lineup on their bingo card.

This was a case involving accusations of racial gerrymandering. Virginia had declined to appeal the ruling against it to the Supreme Court, so the state’s House of Delegates had done so. The court holds that the Virginia legislature lacks standing to appeal in its own right. “In short,” Ginsburg writes, “Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process.” The appeal is dismissed.

Alito writes in dissent that he would “hold that the Virginia House of Delegates has standing to take this appeal. The [majority] disagrees for two reasons: first, because the Virginia law does not authorize the House to defend the invalidated redistricting plan on behalf of the Commonwealth, and, second, because the imposition of the District Court’s districting plan would not cause the House the kind of harm required by Article III of the Constitution. I am convinced that the second holding is wrong and therefore will not address the first” [standing issue].

Because this case was disposed of on the standing issue, it is not indicative of how the court will rule on the two “political gerrymandering” cases yet to be decided.

The court announced that it will hold an additional opinions day this week on Thursday. So stay tuned for more opinions later this week.

H/T SCOTUSBlog for live blog analysis of opinions.