this post was submitted on 13 Jun 2023
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Politics
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One common mistake is to think that their reasoning aligns closely with the politics of their parties. Gorsuch, for example, is a conservative, but he'll often come down on the side of Native American rights because their position relative to the government is grounded in contracts and treaties, and he's a hawk when it comes to preserving the right of contract. Once you understand that bias in his thinking, it makes sense as a conservative point of view, but it also means that he sometimes rules in favor of plaintiffs that we'd associate with the liberal side of a case.
Part of what's so flummoxing about Allen v. Milligan is that most of us thought we had Roberts pegged as the anti-VRA guy. He opposed it in the Reagan administration, helped tear down pre-clearance, and has consistently ruled against it. So either something here has recalibrated his position, even if only temporarily, or there's a nuance to position that hasn't really stood out in previous cases.
And Kavanaugh, who knows? I don't have a clear sense of his ideological commitments. Maybe he has none.
Very well said, and it's also interesting because so much of the previous decisions are based on the general attitude of the time or the policies. Like looking back the decisions are technically incorrect in a lot of areas (school integration etc.). Obviously the outcome is "good". But that's where the constitutionalists come in and knock it down.