Can be a lot worse....

If you think Trump’s Supreme Court picks were bad, take a look at DeSantis’ choices

Opinion by Duncan Hosie

Florida Gov. Ron DeSantis recently attacked his leading competitor for the Republican presidential nomination, former President Donald Trump, from an unusual angle. In an interview earlier this month with radio host Hugh Hewitt, DeSantis vowed to do “better” than Trump in making Supreme Court appointments: “I respect the three appointees he did, but none of those three are at the same level of Justice (Clarence) Thomas and Justice (Samuel) Alito.”

Liberals may be tempted to dismiss these comments as meaningless campaign bluster. They shouldn’t. DeSantis has appointed far more extreme justices to the Florida Supreme Court than Trump did to the US Supreme Court. And DeSantis’s appointees – not Trump’s – reflect the ascendant wing of the conservative legal movement.

DeSantis’ judicial appointments don’t follow the molds of the justices Trump appointed: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Instead, they emulate Thomas and Alito, appointed by Presidents George H.W. Bush and George W. Bush, respectively.

According to judicial ideological assessments, the pair is clearly further to the right. Trump’s trio, despite being among the most conservative justices in American history, are comparative moderates in their temperament, constitutional philosophy and conception of the judicial role.

The divide was clear in a ruling made earlier this month. In Haaland v. Brackeen, Barrett wrote the decision upholding a 1978 law aimed at preserving Native American adoptees’ ties to their tribes and traditions. She was joined by Kavanaugh and Gorsuch, with Thomas and Alito sharply dissenting.

Consider these justices’ varying views on stare decisis, the legal doctrine that holds courts should adhere to previously decided cases. Thomas has made clear that he doesn’t believe in it. If a past ruling is “demonstrably erroneous” – i.e., it conflicts with his personal understanding of the “original meaning” of constitutional provisions – Thomas says it should be cast aside.

Alito’s rulings, alternatively, put a partisan patina on Thomas’ approach: When stare decisis has stood in the way of reaching a desired outcome – as 1973’s Roe v. Wade did to Alito’s decades-long quest to wipe away the right to abortion, or as 1977’s Abood v. Detroit Board of Education did to his long-standing skepticism of labor unions – he has ignored it. When stare decisis has facilitated a desired outcome – as Apodaca v. Oregon did for his push to make it easier for prosecutors to secure criminal convictions – he has applauded it.

Like Trump’s appointments, DeSantis’ appointees – Carlos Muñiz, John Couriel, Jamie Grosshans, Renatha Francis and Meredith Sasso – have ties to the Federalist Society. But DeSantis’ appointees to the Florida Supreme Court embrace the Thomas-Alito wing of the organization.

Throwing caution to the wind and legal precedent to the bonfire, they’ve quickly overturned scores of decisions, remaking everything from death penalty jurisprudence to tort law. In 2020, they officially abandoned the legal framework that required a special justification to overturn precedent, citing Thomas’ writings.

Kavanaugh and Barrett aren’t paragons of restraint when it comes to precedent. Both joined Alito’s opinion overturning Roe. But they don’t exhibit the same slash-and-burn arrogance. Kavanaugh has directly challenged Thomas’ views on stare decisis. Barrett has also eschewed the Thomas-Alito-DeSantis playbook. Overall, both show a bit more humility, deliberation and moderation and a lot less belligerence.

Kavanaugh’s commitment to stare decisis has led to surprising outcomes this term. In late May, he refused to sign on to Alito’s opinion curbing the EPA’s authority to protect wetlands, arguing that Alito’s opinion departed from precedent. And, last week, Kavanaugh joined the majority to hold that the Voting Rights Act required Alabama to draw another majority-Black congressional district. Why? Stare decisis, as he explained in his concurrence.

DeSantis’ appointees, in contrast, have jumped at entrenching conservative electoral domination and curtailing Black political power. Ignoring existing law, DeSantis’ justices have rubber-stamped the governor’s extreme gerrymandering of congressional districts, which dismantled a majority-Black district; blessed DeSantis’ plot to gut a voter initiative that restored voting rights to felons; and blocked progressive initiatives, including legalizing marijuana and banning assault weapons, from appearing on the ballot.

Imitating Thomas and Alito, DeSantis’ appointees have rushed into gratuitous political controversies, writing opinions heavy on theory and light on practicality. Barrett and Kavanaugh have been more pragmatic, taking into account functional considerations as well as outcomes.

In January 2022, Kavanaugh joined an opinion allowing the Biden administration to require certain employees at facilities receiving federal funding to get vaccinated against Covid-19. The decision stressed the “scale and scope” of the pandemic. And in the recent decision affirming Congress’ power to enact a federal law that gives relatives and tribes priority in the foster care and adoption of Native American children, Barrett carefully reviewed precedent and the complexities of America’s child welfare system.

Similarly, in 2020’s Fulton v. City of Philadelphia, they both rejected Alito’s fierce pleading to slay Employment Division v. Smith, a precedent loathed by the religious right because it makes it harder for people and institutions to demonstrate they are entitled to religious exemptions. As Barrett wrote, “There would be a number of issues to work through if Smith were overruled.”

By contrast, the DeSantis court has indulged the most outlandish theories of the legal right. In December, it approved DeSantis’ breathtaking request to impanel a statewide grand jury to investigate unspecified “wrongdoing” related to the Covid vaccines. Alito and Thomas have similarly promoted anti-vaccine rhetoric. Thomas (and to a lesser extent, Alito) also agitated to hear cases based on Trump’s “Stop the Steal” delusion that he had won the 2020 presidential election. Gorsuch, Kavanaugh and Barrett have had no patience for these canards.

Gorsuch, for his part, is more closely aligned with Alito and Thomas than with Barrett or Kavanaugh. But he’s shown a type of unpredictability alien to DeSantis’ nominees, who vote together in politically charged cases. He’s emerged as the court’s strongest champion of Native American rights and, over the dissents of Thomas and Alito, voted repeatedly to let legal investigations into Trump proceed. Gorsuch’s rigid textualism has also led him away from the party line in a seminal LGBTQ rights case and in cases involving criminal procedure and immigrants.

DeSantis loathes this independent streak, saying in 2022 that one of the “frustrating things” about today’s Supreme Court is that “in these high-profile cases, you know those three liberal justices will vote the same every single time,” whereas on the conservative side, there aren’t “the same guarantees.” His claim of liberal groupthink was off-base but still revealing: DeSantis wants conservative judges to rule in lockstep.

I write as no fan of Trump’s appointees. We shouldn’t downplay a forest fire by pointing to the explosive bursts of a fiery volcano; both will burn. Yet it’s a mistake for my fellow liberals to think of the conservative legal movement as a monolith, or assume the Supreme Court has reached rock bottom just because the current court is a horror show largely of Trump’s making. It’s not just intellectually lazy but also increasingly dangerous to lump all of the Federalist Society’s factions together.

An imperial flank of this movement wants to use the courts to impose a conservative agenda that has until now not been unachievable through legislation, and empowers the judicial branch above the others in enacting it. Thomas and Alito are in this vanguard, as are DeSantis’ appointees and some of Trump’s lower court appointees, with which DeSantis is aligned. Signs suggest a vengeful Trump could be, too, if returned to the White House.

Trump’s three appointments to the Supreme Court haven’t fully joined the crusade. This isn’t a testament to their moderation; it instead reflects the extremism of the others. But it doesn’t make this distinction any less real. There’s a world of difference between Trump’s justices and DeSantis’.