Last Branch Standing summary

Think of US politics as a pendulum swinging from left to right along an axis. Election after election it swings back and forth because of the two-party system. But to understand the Supreme Court we have to consider a completely different ideological axis, one that is pretty unique to law. 

Instead of left and right, we have to consider a Justice’s position along an axis that swings between consistency and credibility on one side, and willingness to change on the other. To put it another way, an axis with the value of trust in the institution of the court on one side, and the need to get any particular decision right on the other.

Each Justice brings a unique combination of politics and Institutionalist-or-not beliefs about the role of the court. Sometimes the most conservative Justice may align with the most liberal when the decision upholds established precedent. At other times, the most liberal may align with the ultra conservatives when doing so undoes an historic injustice.

To see what this looks like in practice, consider the case of Griffin v HM Florida-Orl, which was decided in 2023. This was a case that challenged the constitutionality of Florida’s Protection of Children Act, which made it a crime to allow children to view drag performances, considering drag performance to be a lewd act.

Since the founding of the Supreme Court, each era has been named for the Chief Justice presiding. Since 2005 that has been Chief Justice John Roberts. He has presided over one of the most controversial courts in recent history, the one overturning Roe v Wade. Yet his primary concern is for the institutional credibility of the court, and he frequently reminds his colleagues that they are not 9 separate Justices, but the Roberts Court.

That isn’t just about the name: Roberts has voted with the majority in 90 percent of the Court’s decisions since 2018. Which means he has frustrated conservatives and liberals alike voting in ways they didn’t anticipate. He sided even against the conservative Justices in upholding a Congressional tax mandate in the Affordable Care Act during an election year, earning him the ire of Justices Alito, Thomas, and Scalia.

After the top three majority-voters in the previous chapter, the next Justice most likely to vote in the majority might surprise you. Because it isn’t another of the conservatives, it is Elena Kagan. In fact, none of the other conservative Justices are in the majority as much as the three liberal Justices currently serving.

Nominated back in 2010 by President Barack Obama, Elena Kagan is perhaps the most politically savvy of today’s Justices. She often negotiates between liberal and conservative blocks to achieve consensus, something usually reserved for the Chief Justice. Kagan is the least-likely to author a decision, but when she does they are deemed eloquent by both sides. She is considered to be the best writer and orator on the court.  

The faction of Supreme Court Justices that gets the most media attention is the ultra conservative trio: Justices Alito, Thomas and Gorsuch. Together they manage to earn the ire of  conservative institutionalists and progressive jurists alike. Alito has declared in oral arguments that he hates free speech. Justice Thomas has compared Affirmative Action to Segregation. They are far less concerned with the institutional credibility of the Court as they are with their conservative judicial values.

Appointed by President George H. W. Bush back in 1991, Justice Thomas’ confirmation hearings became a spectacle. He was confirmed despite explicit testimony about sexual harassment from former colleagues. He called it a “high-tech lynching.” He has become known as both highly intellectual, and more originalist in his interpretation of the law than almost any Justice in history. Ultimately, his outspoken individualism has brought scrutiny to his personal affairs, including the acceptance of large gifts without officially declaring them.