On June 18, 2021, I wrote, "We don't have a 6-3 Conservative Court. We have a 3-3-3 Court." I'm not sure if I was the first person to coin the phrase 3-3-3 Court, but I was one of the first. And I elaborated on this theme in a Newsweek column, titled "Conservative Justices Warn Kavanaugh and Barrett Lack 'Fortitude.'" Like with most things I write, this post proved controversial. Conservatives were unhappy that I lumped in Justices Kavanaugh and Barrett in with the Chief Justice. And progressives were miffed that I would try to minimize how radical the Court was by identifying a phantom moderate middle. One year later, we can revisit this paradigm.
As a threshold matter, we can look at how often the Justices agreed with each other. According to the New York Times, Chief Justice Roberts and Justice Kavanaugh agreed in 98% of argued cases. SCOTUSBlog pegged the number at 100%. I think this metric is somewhat inflated, because the Chief Justice's vote in Dobbs really should not be lumped in with those of the majority. But Dobbs aside--and that is a huge aside--Roberts and Kavanaugh are two peas in a pod. And don't forget Kavanaugh's already-influential concurrence in Bruen, which the Chief joined. Early predictions of a "budding bromance" have proved apt. By contrast, there was a much bigger gap with the newest member of the Court. Justice Barrett lined up with the Chief around 85% of the time. And Justice Alito was not far behind.
Another way to identify the Court's center is to measure how often the conservatives vote with the progressives. Roberts and Kavanaugh joined the Court's three progressives in four 5-4 cases: Biden v. Missouri (CMS vaccine mandate), Nance v. Ward (method of execution), Torres v. Texas DPS (state sovereign immunity), and Biden v. Texas (Remain in Mexico). Each of these cases was fairly significant. Justices Thomas, Gorsuch, and Barrett each voted with the Court's progressives twice in 5-4 splits, all in fairly minor cases. Justice Alito had zero such cases.
