However, when it comes down to the Supreme Court, there is another axis. I call it the institutionalist axis. Justices on one side are strict about what is known as the "four corners" of the briefs, which are the factual and legal analysis contained in the pages submitted by advocates to the court. The institutionalists are on the other side. They consider factors that go beyond the reasoning presented to them, such as the importance of upholding court precedents. The recent decisions make sense when you look at the two-dimensional plot of the justices.Take Justice Neil Gorsuch or Justice Brett Kavanaugh as an example. Both follow conservative models of legal interpretation, textualism and originalism. Originalismis the only true belief of legal conservatives. It is the belief that the Constitution does not mean what society or the court thinks it should, but what it actually meant when it was adopted. This was the view taken by the late Justice Antonin Scalia. According to Fifth Circuit Judge Don Willett, textualism is based entirely on the text, which is the alpha and omega of the interpretive process.When viewed from this axis, Gorsuch and Kavanaugh both are deeply conservative. They both agreed that Arizona could not require voters to cast ballots in the precincts they were assigned under the Voting Rights Bill because it was an ordinary burden of voting and not, like the statute required.One need only take a look at the Bostock decision for last terms to see that even people who share the same school can disagree about how to apply it. Gorsuch and Chief Justice John Roberts argued that the term sex in a statute against discrimination must include sexual orientation and gender identity. Kavanaugh and the other conservatives in dissension argued that textualism required courts to adhere to the normal meaning of phrases, rather than just the meanings of words within a phrase.The real disagreements today are along the institutionalist-axis where judges have divergent opinions about the Supreme Court's role. Gorsuch and other justices from the lower four corners believe that the law and facts alone should determine the outcome of a case. Kavanaugh is more institutionalist, however, and the court's role in the case is crucial. For example, an institutionalist may believe that the court has the responsibility of leading the judiciary branch and issuing opinions that will guide lower courts in their future cases. That precedent is important because it affects the credibility of the courts with the public. Also, that any changes to the law should only be incremental and limited because inconsistancy and flexibility, as Edmund Burke said, can undermine the integrity and validity of the rule. Kavanaugh's conservative judicial philosophy, on the other hand, is not affected by the outcome of a particular case. Gorsuch's conservative judicial philosophy is.This distinction is even more evident when you examine the statistics for this term. Gorsuch agreed completely with Justice Clarence Thomas, the most conservative justice on court and a four-corner justice at 73% of the time. Kavanaugh was only 46 percent in agreement with Thomas, the same percentage as liberal Justice Elena Kagan.Gorsuch and Kavanaugh differed over whether Kavanaugh's directive to the government to provide notice of appearance at hearings under an immigration statute meant the government needed to compile all information into one document. Gorsuch, who wrote the majority opinion, stated that the word "a" meant that the government had to submit a notice to appear at a hearing in an immigration statute. Kavanaugh disagreed, arguing that Gorsuch's reading creates absurdities and will place serious administrative burdens on an already overwhelmed immigration system, which could harm other noncitizens.We saw that Kavanaugh is to the right of Gorsuch on the conservative axis. However, as we saw in Bostock, Kavanaugh is much higher up on the institutionalist side. Even though we have only one term to attach Justice Barrett's position, it is becoming increasingly obvious that she is both very conservative and institutionalist.Justice Sonia Sotomayor, on the liberal side, is closer to four corners. Elena Kagan, however, is an institutionist, especially when it is about upholding past court precedents. Kagan supported Alito's dissent in a case about whether juries must be unanimous in criminal cases. She noted that the majority was overruling 50-years of precedent. She stated that it didn't matter if the previous decision was wrong, because she noted that the majority overruled 50 years of precedent.This second axis will change how each side views future nominees for the judiciary. Republicans know that a nominee for a court with a conservative record is not a guarantee of the quality of their justice. Because they were so focused on securing nominees that fit their ideology, they may have overlooked any inquiry into their institutionalist beliefs. Partisans, whether conservative or liberal in their views, tend to dislike institutionalist judge because they are not influenced by conservative or liberal legal ideology. (This is why Republicans love Justice Samuel Alito from the conservative four corners, but see Chief Justice, a conservative institutionist, as a traitor.It is difficult to see institutionalist philosophy before a justice is elected to the Supreme Court. This is because it all depends on how that justice views his or her role in the court. Many nominees have served previously as appellate judges on lower courts, where they never had an opportunity to change Supreme Court precedents. Our scripted confirmation hearings will not give us a glimpse into this thinking. Kagan, a justice, said to the Senate Judiciary Committee that he is a high-ranking institutionalist. Gorsuch, who was a lower institutionalist, stated to them that you start with a strong, heavy presumption for precedent in our system.This dynamic is a sign of a new era at the Supreme Court. The outcomes may not be as predictable as some believe. One striking statistic is that eight cases were divided 5-4 in this term with five different alignments. Kagan was joined by Thomas, Gorsuch, Barrett and Alito in one case. In two cases, Thomas was joined by Stephen Breyer and Sotomayor. This is why it is wrong to consider the Supreme Court today a 6-3 court. It is a 3-3-3 court with 3 conservative institutionists, 3 conservative 4 corners justices, and 3 liberals. (The four corners/institutionalist split among liberals seems to have less bearing on the cases outcome.)Statistic support the 3-3-3 alignment. According to SCOTUSBlog 76-85 per cent of the cases were decided by Liberals Breyer, Sotomayor, and Kagan. Roberts, Kavanaugh, and Barrett, all conservative institutionalists agreed on 75-84 percent. In both cases, the three-member trios sided with each other more often than any other justices. It is interesting that the three most conservative justices (Thomas Alito, Gorsuch, and Gorsuch) often disagree with one another less often. It is not likely that their institutional differences are the reason, but because they don't all have the same conservative judicial philosophy.These odd alignments could be a sign of the growth of a new court. This could be the new court. It would be a court that is less predictable on the ideological liberal-conservative side of the axis. This could increase credibility and weaken attempts by either side to take control of the court by adding seats to or restricting its authority. With Thomas's imminent departure, partisans from both sides will be able to seek out justices with low institutionalists, which are therefore more predictable along the horizontal ideological axis.The court will start a term this fall that could decide whether Roe v. Wade is overturned, whether a person has a constitutional right not to have a firearm in the home, and whether colleges are allowed to continue using race in admissions. Don't expect any clear wins for either political side. With the new court, it is likely that both sides will not be satisfied with the results.
