Roberts vs. Trump: Barely Disguised Contempt (Part 2)

Many readers are understandably upset with the Roberts Court's dismantling of the Voting Rights Act and other decisions viewed as politically and socially regressive. But there is another side of Roberts and his Court--perhaps just a slice--that shouldn't be overlooked. Some of the decisions exhibit a different character.

In Part 1, we looked at two majority opinions of Chief Justice John Roberts. One sided with President Trump and one did not. But in both, the Chief Justice's utter disdain for Trump's words and actions could not have been more clear. While upholding the travel ban of Trump's first administration [Trump v. Hawaii (2018)], Roberts contrasted Trump's expressed religious bigotry to the magnanimous and tolerant welcoming of other presidents toward minority religions. And when Roberts more recently wrote to invalidate Trump's tariffs [Learning Resources, Inc. v. Trump (2026)], he made clear how the tariffs seemed the result of fitful recklessness rather than thoughtful consideration. 

There are more than a few other decisions--in which Roberts either wrote for the majority or was part of it--where Trump's major policies or pet preferences were blunted or rejected outright. Sometimes the Roberts majority did so summarily. As in, "give me a break!"

But whether the Roberts-led majority did so summarily or with full deliberation and opinion, recalling a sample of these decisions lends a less monochromatic picture of the Chief Justice and, particularly, his Court's perspective on Trump. Consider these:

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In Moore v. Harper, Chief Justice Roberts wrote for a 6-3 majority--above dissenting Justices Thomas, Alito, and Gorsuch--to reject a pet constitutional theory advanced by Trump and his allies. The so-called "Independent Legislature Doctrine" would have barred any judicial review of any state legislative gerrymandering.

For example, that doctrine would prevent a state supreme court from ruling that the gerrymandering enacted by the state's legislature violated constitutional rights under the state's law. So, in this case, it would have prevented the North Carolina Supreme Court from ruling that the extremely partisan gerrymandering by North Carolina's Republican controlled state legislature violated the state constitution's guarantees of voting rights and equal protection. In short, the state legislature's gerrymandering would be final and the North Carolina Supreme Court could do nothing about it.

Trump and his allies' pet theory, which was advanced to help guarantee additional pro-Trump voting districts, was emphatically rejected by the Roberts majority. The Chief Justice, together with Justices Kavanaugh and Barrett, voted with the three liberal Justices--Sotomayor, Kagan, and Jackson. According to Roberts' opinion, despite the Supreme Court's hands-off approach to partisan gerrymandering by state legislatures, the state supreme courts are free to engage in the matter and prohibit such gerrymandering under their own state law.

The year before, a similar majority--again headed by Roberts, but before Justice Jackson replaced the retiring Stephen Breyer--had weighed in on another election-related matter against Trump and his allies.

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In Ritter v. Migliore, the 6-3 Roberts-led majority refused to invalidate certain mail-in ballots--another pet-target of Trump and his supporters. In this case, via a mere order without opinion, the Roberts majority, against the wishes of Trump allies, granted certiorari (i.e., accepted review) and summarily allowed the counting of timely mail-in ballots whose lone defect was their undated envelopes. Once again, Thomas, Alito, and Gorsuch were in dissent.

Last year, despite what seemed to some to be consistent Trump victories at the Court, Roberts-led majorities did stymie numerous efforts by the President, his administration, and his allies. Let's start with foreign affairs.

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In Department of State v. AIDS Vaccine Advocacy Coalition, in another unsigned order, the Chief Justice, joined by the three liberals plus Justice Barrett, summarily sustained a decision of a lower federal court that had directed the Trump administration to pay nearly $2 billion to a global non-profit health organization. In effect, a 5-4 majority mandated that the Trump administration disburse the funds for work already performed in the international AIDS prevention programs. Thomas, Alito, and Gorsuch were in dissent again, this time joined by Justice Kavanaugh.

Also in 2025, the same Roberts-led 5-4 majority rebuffed Trump's claim to immunity from New York State's criminal proceedings against him.

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In Trump v. New York, the then re-elected but not yet re-inaugurated Trump sought to expand the presidential immunity that the Court had recognized the year before in Trump v. U.S. The Court should go further, Trump argued, and recognize immunity for a president-elect--particularly against state court proceedings here. But again, the Chief Justice, joined by the three liberals plus Justice Barrett, summarily rejected Trump's request and allowed the New York proceedings to continue regarding Trump's multiple state convictions for business fraud. Also again, Thomas, Alito and Gorsuch, joined by Kavanaugh, dissented.

[Footnote: I trust you don't take it seriously when those same dissenting Justices--in cases where they like what the states are doing--insist that the Court should defer to the states and allow the states to do what the states think is best. You don't, do you? They certainly don't advocate deference when they don't like what a state is doing.]

A few years earlier, Roberts had authored an opinion for the Court to reject another Trump argument against state criminal proceedings. This case involved Trump during his presidency.

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In Trump v. Vance, during his first term, the president's lawyers made several arguments for immunizing Trump against state grand jury subpoenas. The chief executive of the national government, they argued, should be shielded from bothersome state proceedings; that allowing state investigations of a president would subject him to harassment by any number of states; that a president is too busy to be distracted by state proceedings; etc. The Roberts majority rejected all the arguments and refused to recognize any broad immunity for a president from state process. A president could challenge a faulty state subpoena just like anyone else. But that's it.

Not surprisingly, Justices Thomas and Alito supported Trump and dissented. Moreover, in a concurring opinion, Justice Kavanaugh, joined by Gorsuch, argued that the Court should require a more demanding level of justification for a state subpoena against a president before it can be approved. The Roberts majority declined to do that.

[Footnote: Same as above. You don't really take seriously the dissenters' "we should defer to the states" argument in other cases, do you?]

And here's a more recent case of Trump versus a state from the end of last year. The decision was another major loss for the administration.

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In Trump v. Illinois, the president--against the will of the Governor of Illinois and Mayor of Chicago--sought to activate the state's national guard. Trump claimed the power to do so. His lawyers argued that Trump has such power based both on the inherent constitutional authority of the office of the presidency, and on federal statutes providing for the protection of federal personnel and property. The Roberts-led majority, in response an emergency application brought by Trump, disagreed.

A five-Justice majority--Roberts, the three liberals, and Barrett--joined in an unsigned order rejecting Trump's claim that he could deploy the Illinois national guard to respond to an "invasion or a rebellion or danger of rebellion" in Chicago. That is, against large gatherings in Chicago protesting against Trump's immigration policies and, specifically, the tactics of ICE (Immigration and Customs Enforcement) agents in the city.

The majority held that the Trump administration failed to show that activating the national guard was necessary. Together with Justice Kavanaugh who wrote a separate opinion, the majority upheld the lower court's order halting Trump's actions.

Not surprisingly, Thomas, Alito, and Gorsuch dissented. They argued, among other things, that the president might have inherent constitutional authority to deploy a state's national guard under circumstances such as in this case. The Court, according to them, should have deferred to the judgment of the president--especially in his emergency application.

[Footnote: Same as above. "Defer-to-the-states" principle apparently applies only when the Justices advocating it like what the states are doing.]

In another immigration-related decision earlier last year, A.A.R.P. v. Trump, the Roberts-led majority put rebuffed Trump's deportation policy that elevated brutal efficiency over the barest of fair treatment.

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As part of Trump's policy of removing non-citizens who he claimed were part of a violent Venezuelan gang, he ordered that any Venezuelan citizen (over 14) could be “apprehended, restrained, secured, and removed" under the 1798 Alien Enemies Act. In fact, they were being sent to a hellish maximum-security prison in El Salvador. After winding its way to the Supreme Court, the emergency application of Venezuelan detainees was granted. 

The Roberts-led 7-2 majority, in an unsigned per curiam opinion, ruled that the non-citizens were entitled, as a matter of constitutional due process, to some meaningful opportunity to challenge their removal. According to that majority, the bare notice that was being provided to the Venezuelans, lacking any useful information and only delivered the day before deportation--a description the Trump administration did not deny--“surely does not pass muster.” 

In an opinion by Alito, he and Thomas dissented. Amidst technical, legal arguments, they evinced--[What can I say?]--as little sympathy for the hardship of the immigrants as the Trump administration. The majority was clearly wrong, Alito argued, because the Court didn't have jurisdiction to rule on this emergency application under the procedural posture of the case. Moreover, he labelled the petition for emergency due process relief an "extraordinary demand." 

Whatever the dissenters doubts about the procedural merits of the case, there is no doubt that here, as in other cases thus far identified, Chief Justice Roberts and his majorities were again displaying, at best, impatience with Trump and his policies.

Two more cases. In both of these, the "defer-to-the-states" dissenters did side with the interests of the respective states. But in these cases, the states involved had policies hostile to abortion--a hostility the dissenters favored. So you would certainly expect the dissenters to vote the way they did.

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In the 2024 case of Oklahoma v. Department of Health and Human Service, the Roberts-led majority supported a pro-abortion position of the Biden administration. The majority rejected the strict hostility towards reproductive choice that has been a hallmark of Trump's presidencies and of his state allies.

In a bare unsigned order, the six-Justice majority--Roberts, the three liberals, Barrett and Kavanaugh--sided with the federal government's decision to deny to Oklahoma several million in funding because that state prohibited abortion referrals and even family-planning counseling. Oklahoma's strict anti-abortion policy contravened the federal Public Health Service Act. In a similarly bare unsigned order, Thomas, Alito, and Gorsuch voted to give Trump-friendly Oklahoma the funds.

As many readers surely know, the Court just issued another abortion-friendly order this month. Once again, the Roberts-led majority sided with reproductive rights and ruled against another Trump-friendly, abortion-hostile state.

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In Danco Laboratories v. Louisiana, the state had sought to stop any shipment of mifepristone into the state. The appeals court below granted Louisiana's request to stop shipments of the abortion-producing medication while litigation was pending. It reasoned that Louisiana was ultimately likely to succeed.

But in an unsigned order of a 7-2 majority, the Supreme Court blocked that ruling. The Chief Justice, the three liberals, Kavanaugh, Barrett, and, this time, with Gorsuch as well, sided with the mifepristone manufacturers and, of course with the women in Louisiana who order it. In ordering the shipments to continue, the majority were apparently not so sure that Louisiana would ultimately prevail.

As one would certainly expect, Justices Thomas and Alito dissented. In his separate opinion, Thomas argued that the 19th century Comstock Act, which prohibits all interstate distribution of contraception and abortion materials, should still be enforced. In his opinion, Alito argued that the interstate mailings of mifepristone effectively undermine the Court's 2022 decision in Dobbs v. Jackson which overruled Roe v. Wade. But the Roberts-led majority seemingly had no interest in expanding the effect of the Trump-instigated Dobbs decision--let alone reviving the Comstock Act.

That's all for now. Did I cherry pick decisions to make my point? Guilty. Did I identify a very limited number of Roberts-led decisions that happened to have a common thread? Yes, guilty.

But the point is that the Roberts Court has not been uniformly supportive of Trump. No, not at all. It might seem that way to some who abhor some of the pro-Trump decisions. To be sure, at times it does seem as though the Court has been issuing one pro-Trump decision after another. Especially after some that might seem shockingly contradictory to established constitutional principles.

But a candid, dispassionate review of the Court's decisions shows that the Court has not been unidirectional when it comes to Trump, his administration, and his policies. And regarding the particular purpose here, Chief Justice Roberts and his majorities have actually handed Trump some very important defeats, and they have increasingly shown an impatience and even utter contempt for this president and his policies.

The Voting Rights Decision--A Fait Accompli

Let's look at the latest voting rights decision before returning to Roberts vs. Trump.

There is understandable dismay and outright disgust with last week's voting rights decision--mine included. But any shock and surprise about Louisiana v. Callais, whether from the dissenting Justices or liberal commentators, seems a bit forced. Anyone following the persistent direction of the Court's decisions on racial preferences over the last 40 years had to know that this was inevitable.

In short, the Court decided that the Voting Rights Act does not require and, more critically, constitutional Equal Protection does prohibit the consideration of race in drawing congressional districts. And it makes no difference if race is taken into account for the benign purpose of protecting the voting rights of minorities. Nope. Creating or preserving Black-majority districts is discrimination on the basis of race against non-Black voters.

 

At least since 1986, with conservative appointees of Presidents Nixon and Reagan taking control of the Court, the predominant view among the Justices has been a discomfort, if not outright hostility toward so-called "reverse discrimination." Race-conscious policies, even to redress the lasting effects of the historic discrimination against Blacks in this country, have been viewed as invidious--even if sometimes tolerated--discrimination on the basis of race.

The protection of "insular and discrete minorities" had previously been understood to be the primary purpose of the Constitution's post-Civil War guarantee of equal rights. The elimination of government-approved mistreatment of minorities was recognized as the motivating policy underlying the Equal Protection Clause of the 14th Amendment. The most celebrated footnote in Supreme Court history--Justice Harlan Stone's footnote 4 in the Court's 1938 decision in U. S. v. Carolene Products Co.--articulated that rubric. 

Accordingly, the protection of historically oppressed minorities remained established constitutional law for a while. But later, ideologically conservative Republican appointees began to revise the aim of equal protection and the concept of constitutionally repugnant discrimination. 

In its 1986 decision in Wygant v. Jackson Bd. of Educ., with Nixon and Reagan appointees now dominating the Court, a bare majority of the Justices invalidated a program that provided preferential protection against layoffs to Black employees. Those minority workers had been recently hired to remedy past discrimination in hiring. But this benign racial preference was viewed as unconstitutional discrimination against white employees. The Court made clear that protection of the white majority would be considered just as compelling as the protection of the racial minority--regardless of which group had suffered the historic discrimination that led to the Equal Protection Clause.

Within a short time thereafter, retirements from the Court gave Reagan the opportunity to fill vacancies with like-minded appointments. Especially notable were Reagan's elevation of William Rehnquist to replace the retired Chief Justice Warren Burger, and his appointment of Antonin Scalia to fill Rehnquist's former position. Like Reagan, these two appointees were mostly unsympathetic to the civil rights emphasis on protecting Black Americans.

Let's remember--as some have recalled to bring realism to the nostalgia over Ronald Reagan--that shortly after his election, he opposed extending the Voting Rights Act and sought to dilute its provisions until he was politically embarrassed to do otherwise. Remember also that he actually began his presidential campaign in Philadelphia, Mississippi where three civil rights workers had been murdered, and he used the occasion to exalt states' rights and to criticize the civil rights laws as an insult to the South. And just as revolting (in my humble view)--in a reversal of Nixon and Carter policy--Reagan supported federal support for "Christian" colleges and universities that openly practiced racial segregation. (The Supreme Court ruled against his position and upheld the Nixon-Carter policy in Bob Jones Univ. v. United States, 1983.) 

Reagan's selections of Rehnquist and Scalia were fitting. Rehnquist, when a law clerk at the Supreme Court, wrote a memo in support of the "separate but equal" doctrine and in opposition to the ultimate decision in Brown v. Board of Education to end racial segregation. And while on the Court himself, he was the lone dissenting vote in the Bob Jones Univ. case to restore federal support for racially segregated colleges and universities.

As for Scalia, it is difficult, if not impossible, to find a single vote in which he supported civil rights for Blacks. Whether the cases before the Court involved prosecutors removing Blacks from juries, or universities trying to diversify racially to remedy past discrimination in admissions, or any other civil rights-related issue, Scalia consistently sided against the interests of Black Americans.

So, it was not at all surprising what the Court ruled, with Chief Justice Rehnquist and Justice Scalia in the majority, in its 1989 decision in City of Richmond v. J. A. Croson Co. As in Wygant, three years earlier, the Court invalidated another remedial racial preference program. Over the three liberal Justices in dissent, the majority held that the program to set aside 30% of the city's construction contracts to minority-owned businesses violated Equal Protection. The Court reinforced its Wygant decision that any racial classification--whether it discriminated against minorities or sought to redress that historic discrimination--was constitutionally suspect and nearly impossible to justify.

From there to the Court's rulings against affirmative action in school admissions was simply a natural progression. In 2003, in a pair of decisions--Gratz v. Bollinger and Grutter v. Bollinger--the Court severely limited the benign consideration of race in college and university admissions. By a vote of 6-3 in Gratz, the Court invalidated an admissions program where race seemed to be a dispositive factor. In the Court's words, nearly every “underrepresented minority” was admitted. And by a bare 5-4 vote in Grutter, the Court upheld an admissions program where race was a single factor among many in a very "individualized review" of each applicant. The four dissenters condemned the admission of--in the words of the major dissenting opinion by Chief Justice Rehnquist--"less qualified underrepresented minorities," whatever the purported purpose.

For the next several years, the Court seemed ready to end racial considerations in admissions policies entirely. It did so unqualifiedly in 2023 in SFFA v. Harvard and Univ. of North Carolina. The plaintiffs--felicitously self-named "Students for Fair Admissions"--did not seek fair admissions at all in the case, but only an end to any consideration of race. (Not athletes, not legacies, not donor families, etc., etc.) The 6-3 majority spoke through the opinion of Chief Justice John Roberts--who, by the way, was a law clerk for Rehnquist, and then worked in the Reagan administration DOJ, where he advocated against the Voting Rights Act. (Not surprisingly then, ten years before SFFA in the 2013 case of Shelby County v. Holder, he wrote for the 5-4 majority to invalidate a key section of the Voting Rights Act. The required federal "pre-clearance," before election laws could be changed in sections of the country that had historically practiced voting rights discrimination, was now, according to Roberts, unconstitutionally outdated.)

In SFFA, Roberts' argument for the majority against all racial preferences--whether to redress historic discrimination or to insure diversity of the student body--was the Constitution's supposed mandate for "color blindness." As Roberts explained it, "Eliminating racial discrimination means eliminating all of it...The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color." 

The three dissenters--liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson--argued that race consciousness had actually advanced the Constitution's guarantee of equality. They also reminded the majority that the very purpose of the Equal Protection Clause was to protect the newly freed Black minority, not exactly color blindness.

Now, three years later, last week in Louisiana v. Callais, the very same majority and minority have made the very same arguments.

For the same majority: the consideration of race in creating voting districts violates Equal Protection, even for the benign purpose of remedying past discrimination. Preferring one race necessarily disfavors another. Discrimination can't mean one thing when it hurts Black voters, and something else when it disfavors whites. Elimination of racial discrimination means eliminating all of it.

For the same dissenters: race consciousness to create and preserve majority Black voting districts helps to insure the Constitution's guarantee of equality in voting. That guarantee, foremost, was the protection of the historically discriminated against Black minority. Prohibiting any consideration of race in redistricting hinders, not bolsters, constitutional equality.

The fact is, regardless of how devastating and distressing this most recent voting rights decision might be to those who actually support the voting rights laws--again, me included--it's no surprise at all. Anyone who has followed the direction of the Court for the past few decades could have predicted the majority and dissenting opinions. Even written them.

Louisiana v. Callais was the preordained consequence of the relentless whittling away of the civil rights era. If the commitment of that era was to eliminate, as much as possible, the remnants of this country's savage mistreatment of Black persons, the commitment now is to treat race as though the remnants of that savage mistreatment are now all gone. There are consequences of a 6-3 politically conservative Republican majority. And there are consequences of that growing body of decisions that has been pointing one way for at least 40 years.

We will now witness the aftermath of Louisiana v. Callais. Like the decision itself, the aftermath shouldn't be a surprise.

Roberts vs. Trump: Barely Disguised Contempt

Olivier Douliery/AFP via Getty Images

Linda Greenhouse, the Pulitzer Prize winning former Supreme Court reporter for the New York Times, recently put it this way: the Chief Justice’s “vexation with Mr. Trump verges on acute concern.” [Linda Greenhouse, Roberts Is Losing Patience With Trump, NY Times, Feb. 24, 2026.]

Indeed, the “gratuitous” paragraph Greenhouse excerpted, from Roberts’ majority opinion rejecting Trump’s asserted tariff power, reveals at least “vexation.” Here are several such lines from that paragraph and the preceding one:

[T]he President imposed a 25% duty on most Canadian and Mexican imports and a 10% duty on most Chinese imports. [He also] imposed a duty “on all imports from all trading partners” of at least 10%. Dozens of nations faced higher rates. And these tariffs applied notwithstanding any extant trade agreements.

One month after imposing the 10% drug trafficking tariffs on Chinese goods, he increased the rate to 20%. One month later, he removed a statutory exemption for Chinese goods under $800. Less than a week after imposing the reciprocal tariffs, the President increased the rate on Chinese goods from 34% to 84%. The very next day, he increased the rate further still, to 125%...The President has also shifted sets of goods into and out of the reciprocal tariff framework (exempting from reciprocal tariffs beef, fruits, coffee, tea, spices, and some fertilizers). And he has issued a variety of other adjustments. See, e.g., extending “the suspension of heightened reciprocal tariffs” on Chinese imports.

[Learning Resources, Inc. v. Trump (2026).]

The obvious--whether actually gratuitous--point is that this is capricious conduct of an erratic man.

But the tariffs case was hardly the first time that Chief Justice Roberts has shown “acute concern” about Trump. A notable illustration from back in Trump’s first term was Roberts’ opinion for the Court in the Muslim Ban—I mean “Travel Ban”—case. While his majority opinion upheld Trump’s immigration restrictions at issue in that case, Roberts took pains to point out that his opinion was not an endorsement of “a particular President,” but about “the authority of the Presidency itself.”

Even then, Roberts highlighted the argument that “this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition.” And though he emphasized that the constitutional question in the case was "not whether to denounce the statements,” Roberts’ denunciation was clear.

In a few paragraphs, perhaps as “gratuitous” as the ones in the Tariffs case, Roberts recapped many of Trump’s ugly statements about Muslims. Here’s part of what Roberts included in his opinion:

[W]hile a candidate on the campaign trail, the President published a “Statement on Preventing Muslim Immigration” that called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on”…Then-candidate Trump also stated that “Islam hates us” and asserted that the United States was “having problems with Muslims coming into the country.” Shortly after being elected, when asked whether violence in Europe had affected his plans to “ban Muslim immigration,” the President replied, “You know my plans. All along, I’ve been proven to be right” …[O]ne of the President’s campaign advisers explained that when the President “first announced [the first proposed ban], he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally’…[A]fter issuing [the first replacement order], the President expressed regret that his prior order had been “watered down” and called for a “much tougher version” of his “Travel Ban.” Shortly before the release of the Proclamation, he stated that the “travel ban . . . should be far larger, tougher, and more specific,” but “stupidly that would not be politically correct” …[Thereafter,] the President retweeted links to three anti-Muslim propaganda videos.

[Trump v. Hawaii (2018).]

Roberts immediately contrasted Trump’s conduct with that of other presidents who used their power to speak inspiringly to the Nation “to espouse the principles of religious freedom and tolerance on which this Nation was founded.” Notably, he gave examples of presidents, beginning with Washington, who spoke out against bigotry against Jews and Muslims. But then, pointedly, he remarked that “Presidents [have] performed unevenly in living up to those inspiring words.” Trump, anyone?

Beyond his apparent contempt for the man now occupying the White House for a second time, Roberts has also written opinions for the Court or voted in support of such opinions that rejected Trump’s pet policies or his defenses in cases against him. Despite the conventional wisdom otherwise, Roberts and his Court have actually stymied Trump and his administration numerous times in recent years, in addition to the tariffs case.

We’ll take a look at some of these in the next post. 

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:

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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:

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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:

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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:

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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:

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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:

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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:

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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:

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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:

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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:

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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.

Splinters in the 6-3 Supreme Court (Part 3: Amy Coney Barrett again)

Credit: Mark Schiefelbein/AP

In the first installment in this series, back in December last year, we saw that Justice Amy Coney Barrett's voting record had unmistakenly moderated. It had become less politically conservative in the most recently completed term of Court, 2023-2024, than it had been in her previous three years since her appointment to the Court. In fact, her record was the least politically conservative of the six politically conservative Justices. Beyond that, her record had grown increasingly distant from the records of the Court's two most politically conservative members, Justices Clarence Thomas and Samuel Alito. (See the graph reprinted below at *.)

In the second installment, we saw that Justice Barrett voted with the three politically liberal Justices--Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson--in several of the term's most important cases. Sometimes Chief Justice John Roberts--another moderating conservative on the Court-- was with the liberals as well, but sometimes not. So, for a few examples:

• She had joined the bare majority to refuse to halt New York's criminal proceedings against then-president-elect Trump.
• She had agreed with the liberals in dissent that some of the charges against Trump were clearly criminal and non-presidential and thus outside the scope of immunity.
• She also agreed with the liberals in dissent that disqualifying Trump from public office for insurrection under the 14th Amendment did not require an act of Congress.
• She wrote the dissent for herself, Sotomayor, and Kagan, that the January 6 Capitol rioters were guilty of "obstructing an official proceeding."
• She also wrote the dissent, joined by all three liberals, to uphold Environmental Protection Agency regulations to protect downwind states from the air pollution emitted by upwind states. 

There were others, but those few should suffice to make the point. Indeed, the point is recently being recognized by reporters covering the Court. And by political allies of President Trump and Trump himself, who are furious and calling her "weak," a "rattled law professor," a "DEI appointee," a "closet Democrat," and even "evil."

(See, e.g., Ann E. Marimow, Justice Amy Coney Barrett ignites anger on the right after ruling against Trump, Washington Post, March 6, 2025; Devin Dwyer, MAGA rage against Justice Barrett has been brewing, ABC News, June 3, 2025; Kristen Holmes and John Fritze, Trump privately complains about Amy Coney Barrett and other Supreme Court justices he nominated, CNN, June 3, 2025; Farrah Tomazin, Trump Is Melting Down in Private at ‘Weak’ Amy Coney Barrett, Daily Beast, June 3, 2025.)

As for the Federalist Society which had recommended judicial nominees to Trump, including Barrett, he condemned the former leader of the society in a post on Truth Social: "a real ‘sleazebag’ named Leonard Leo, a bad person who, in his own way, probably hates America." [Whoa! A wee bit unhinged?]

(See Nia Prater, Amy Coney Barrett Has Become a Trump-Administration Villain, New York Magazine Intelligencer, June 3, 2025.)

Early this year, a few days following the second installment in these pages, the "weak" and "rattled" Justice Barrett again broke with the Court's most politically conservative Justices. In Glossip v. Oklahoma, she concurred in the majority opinion of Justice Sotomayor in this death penalty case, that "the prosecution violated its constitutional obligation to correct false testimony."

Barrett agreed with the reasoning of the other members of the majority that the decision below must be overturned: the prosecution, not the lawyer for the defendant, has the duty to correct false testimony. And like the majority, she disagreed with the view of Thomas and Alito that the Oklahoma court had upheld the conviction on pure state law and, therefore, the Supreme Court had no right to review that decision. (She did disagree with the majority's total reversal and grant of a new trial. Instead, she argued that the case should be returned to the state court to make a factual determination whether the prosecutor actually knew that the testimony in question was false.)

In a vote that apparently especially enraged President Trump and his allies, Barrett sided with the three liberals and Roberts in Dept. of State v. AIDS Vaccine Advocacy Coalition, refusing to freeze around $2 billion in foreign aid as previously ordered by Trump.

The case arose from an executive order issued the month before. President Trump had halted the payment of foreign aid funds to federal agencies, in an effort to ensure that payments would only go to programs aligned with Trump's policies. But a district court ordered that foreign aid payments--about $2 billion worth--be made for work already completed. The Supreme Court rejected the Trump administration's request to vacate what the district court had done and to give effect to Trump's executive order. That ruling of the Court's bare majority--which included Justice Barrett--"stunned" the dissenting four conservative Justices. 

Just one more to underscore what the foregoing votes of Justice Barrett should make clear. In Trump v. J.G.G., she sided with the three liberals on the Court, dissenting from the 5-4 majority decision that lifted orders of the D.C. District Court, which had stopped the Trump administration from summarily deporting certain Venezuelan immigrants. In short, the deportations could now continue.

Barrett agreed with Sotomayor's dissenting argument that the deportations were clear due process violations, whether the challenges were brought in D.C. or Texas. She joined the dissenting opinion's warning that, "if the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief," that would violate the bare requirements of constitutional due process and of the Court's decisions--including assertions in today's per curiam opinion. Together with the three liberals, Barrett saw no good reason for the majority--the remaining five conservative Justices--to intervene in the case and interfere with the district court's decision to stop the deportations. 

These and similar votes of Justice Amy Coney Barrett are infuriating Trump allies and disappointing many other political conservatives. On the other hand, some political liberals are warming up to her and applauding her defiance of conservative expectations.

Regardless, unlike the Court's hard-core political conservatives--or liberals--she is displaying a measure of independence, unshackled from ideological purity that should be welcomed by those (of us) who decry the Court's usual, crass partisan divide. Republican Justices Anthony Kennedy and Sandra Day O'Connor were disappointments to those who preferred partisan purity. In the past, Democratic Justice Felix Frankfurter was a notable disappointment to his partisans for similar reasons.

But at least to some--including me--this independence, this lack of partisan one-sidedness, this open-mindedness, this refusal to view judging as an adversarial team sport, is something that is encouraging. One of the developments on this current 6-3 Court that is especially welcomed.

In the next few posts, we'll look at some other cracks or splinters in the Court's 6-3 partisan divide.

 * Here's that promised graph

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