I've mentioned on Twitter and in private conversations with friends that I'm not as direly pessimistic about the 6-3 Republican majority on the Supreme Court as many people have been. And people sometimes want to know why I think that, but Twitter is a pretty terrible place to have that kind of discussion. Long-form writing doesn't work well, and there's a lot of noise disrupting it.

So I'm going to write this here so I can lay out all the context and the ways I view things as a total legal outsider who doesn't really know anything about this. I just find the Court fascinating.

I have to get one thing out of the way up front, otherwise this 2,000-word article isn't worth your time. There is a popular and simplistic way of viewing the Court as being entirely beholden to the political or religious affiliations of the justices. Depending on which social media circles you run in or which traditional media outlets you consume, the justices on the right are presented as being religious nutjobs completely sold out to God and big business and any legal arguments they make are thin veneers over those allegiances. Or in different rags, the left wing of the court is painted as being godless, soulless baby eaters who would much rather have us run by Russia or China or some shit. Neither of these depictions includes them being some of the top legal minds of the country who—while informed by their backgrounds and convictions—are still capable of nuanced thinking based on their understanding of the law.

But it is, in fact, true that they are nuanced in their thinking and their opinions and they are capable of being swayed by the arguments of their colleagues. Since the Burger Court (1969-1986), they have averaged ~30% unanimous decisions, ~30% decisions with 1-3 dissents, and ~30% decisions swung by a single vote. Much more scholarly people than me have tried to figure out why that is, especially in eras that have become increasingly more divided along partisan lines. The Court seems to have resisted that trend. Over the last almost 20 years of the Roberts Court, it has been about 45% unanimous decisions.

It could be that there's an inherent selection bias in the cases they agree to hear. It could be that there's some consideration of political climate and the reactions from the public or the executive branch. It could be that there is a concern among the members of the court about maintaining legitimacy as an institution and that the appearance of some level of agreement and compromise is necessary to protect itself from Congressional shenanigans. All are plausible factors in the relative stability, but the last one might be the biggest. I'm basing that mostly on the massive shift from contentiousness in the Warren Court (1953-1969 with only ~5% unanimous decisions) to the consensus of Berger's Court with almost 40%.

Regardless of whether or not any of these were driving causes, latent responses to the social upheavals of the time, the patterns of agreement and minor disagreement since 1970 are absolutely not the patterns of hard-nosed ideologues, partisan hacks, unpersuadable corporate shills, or anything like that. Rather, they are the patterns of a court that is constantly adjusting their views and responding to the nuanced debate within the court with a genuine attempt to reach agreement.

So that's one argument against the  modern media's portrayal of the Court. The numeric behavior simply destroys that as a possibility. There's a second argument though, and it's a deeply human one: people understand the requirements and boundaries of religious and political affiliations very differently. My brother is a very different kind of Republican than my dad. Elizabeth Warren is a very different kind of Democrat than Joe Biden. Justice Sotomayor is a very different kind of Catholic than Justice Thomas. It's not anyone's place to judge whether one or the other is a good or a bad Catholic, but they very clearly draw different lessons from Catholicism and assign different priorities to the values it teaches.

In my opinion this should be obvious to anyone who's had human interaction that isn't screaming about things on Twitter: you can't argue that the Court is driven by purely partisan or religious ideology without also making the argument that everyone understands those ideologies the same way and applies them to their lives in the same way.

If you're still with me (and I'm not surprised if you aren't. I would've given up like 300 words ago), that's the lens through which I'm looking at the Court today and suggesting that we may be surprised at how the court responds to the Dobbs case attacking the foundations of Roe v. Wade.

I'll start with two factual arguments before I get to wild speculation. The strongest evidence that there's dissent among the right wing of the Court is that it has been discussed in conference 13 times since January. I'm sure these conferences are not as simple as, "Okay, rule of 4, people. Let's do this!" But once again, with that much conference time, it seems to me that this is not a clear-cut ideological issue with 6 of them frothing at the mouth to nuke Roe. It would've happened a lot faster than that.

The second factual argument is that The Chief Justice voted to overturn a law restricting abortion rights just about one year ago in June Medical Services v. Russo. Even though he is ideologically opposed to abortion, the case was so weak that he couldn't legally go along with it.

Even if Roberts is not inclined to hear the case, the pro life wing of the court still has 5 obvious votes, so it still seems to go back to the first point about why did it take 13 conferences to decide to take one aspect of the case?

Okay, so here's where the fun begins. The absolutely crazy speculation. It's one thing to make a case that it's theoretically possible that there's some hesitation among the right wing of the court and to further argue that they are not blindly driven and capable of voting against a religious mandate. But how could that actually play out in practice? It seems really impossible for it to happen with what we know about the court. I'll start with the obvious before I really set my hair on fire and go wild.

We know what Breyer, Sotomayor, and Kagan are going to do. They will vote to uphold the 5th circuit court's rejection of this ban.

We know what Thomas will do because he never stops telling us when he gets a chance. We know that Roberts is hesitant to overturn precedent. And Alito, Gorsuch, Kavanaugh, and Barrett are all pro life, with Kavanaugh voting to uphold the restrictions in the same case Roberts voted against. So assuming Roberts doesn't actually want to gut Roe, how does he peel off another vote?

I think it boils down to the different approaches to conservatism that the right wing justices have and how they will approach their arguments. And I think that the Chief Justice will be happy to drive a wedge within that faction.

Here's my take on Roberts. He's a strong institutionalist with a great deal of concern about the Court's legitimacy. I think he's painfully aware that the 6-3 majority only exists because of major jiggery-pokery on the part of Senate Republicans and he views that as perhaps ideologically convenient but politically problematic. When he does attack precedent, he tends to do so with a scalpel, not a sledgehammer, and there's a big-picture precedent that he really doesn't want set: that congressional applesauce can throw the court in one direction and the court is suddenly and quickly tearing down decades of precedent willy-nilly. If Mitch McConnell gets away with that and this supermajority is successful with gutting Roe it will mortally wound the legitimacy of the court and especially his legacy as Chief Justice. He will be viewed as the guy in charge when the court went down in the flames of alternating court-packing schemes and the defenestration of the Court's authority. He does truly believe that abortion is a moral evil, but I think he tempers that with a belief that the Court itself being in a position of authority and respect is also a moral good. Roberts will provide a path between the extreme—but opposing—views of Thomas and Gorsuch.

Thomas will argue that Roe was straight up a terrible decision that should be overturned. It was legislating from the bench in the most terrible way, and that the correct venue for a right to abortion should be a constitutional amendment. Scratch the whole thing and start over.

Alito joins with Thomas less over the last couple of terms than he did before, but this is the kind of argument that I think would appeal to him, and he might go down this path.

The other major path could come from Gorsuch. He will argue that no, actually Roe was fine, and can stay in place in terms of federal laws regarding abortion, but that incorporating the right under due process was the wrong approach. So essentially saying that Roe should be thrown out and revisited, but for very different reasons: mainly because he actually does think that states should be allowed to make their own choices. I think that both Thomas and Alito will dislike that approach a lot, but I could see it being attractive to Barrett.

So that leaves the Chief Justice to split them with an approach that says something along the lines of, "Look, I don't like this any more than you do. But Roe was procedurally fine, and it is precedent. And no we aren't going to blow this up into pro-life and pro-choice states like we did with slavery. The problem is that if we abandon the viability doctrine from Casey then we no longer have any rational basis for assessing any ban. Roe is fundamentally undermined, and at that point, a ban simply becomes an arbitrary enforcement of a religious belief by a government agent and is therefore unconstitutional. The whole thing is basically fucked. So we aren't doing any of it."

I would expect Kavanaugh to join that kind of opinion, in part because he is also an institutionalist but also in part because the extreme paths I expect Thomas and Gorsuch to take will be unpalatable to him.

It's hard to come up with a lot of paths here, and I feel like I just spent 1,800 words fleshing out the 1 out of 14 million futures from The Avengers that doesn't result in millions of women being robbed of fundamental rights.

But I think it's possible, and if we do get a decision affirming the 5th circuit, it will look something like that. My read on this term is that the 6-3 majority has actually destabilized the court in subtle ways. The right wing of the court with 6 mostly Catholic Republicans has more space to spread their wings out and go out on limbs (not that Thomas ever needed that space). And I think we will see more diversity of thought from them than we did when it was 5. So far it has led to some really interesting breakouts and alliances.

Is this particular scenario likely? No. Not even a little. I fully expect to be wrong on almost every detail. Reading the tea leaves even from oral arguments is almost completely futile. And I haven't even read every brief yet for this case. For better or worse, tracking the Supreme Court is one of my hobbies and this is fun for me. So I do stuff like this.

But I certainly do expect to be very surprised by the opinions and the breakout when they are delivered.

Fingers crossed that maybe I'm a Doctor StrangeLaw or something.