MAKING THE cOURT CONSERVATIVE:

The conservatives on the Court often find themselves in agreement--each of the Court's conservatives justices were in the majority in over 80 percent of the cases heard in the 2020 term. But they also disagree among themselves on important issues that have strategic implications for the compromise-minded John Roberts.

Clarence Thomas has been the lone dissenter in otherwise-unanimous decisions 30 times in his decades on the bench. Unlike Antonin Scalia, Thomas has no scruples about overturning shoddy precedents. "When faced with a demonstrably erroneous precedent," Thomas wrote, "my rule is simple: We should not follow it." Thomas has even called for the disincorporation the establishment clause of the First Amendment. (If you are a textualist, it is hard to argue with his reasoning. )

Samuel Alito, like Thomas, is willing to dissent from his colleagues from the right. He wrote a fiery dissent in Bostock v. Clayton County, which extended Title VII protections under the 1964 Civil Rights Act to gay and transgender employees; Neil Gorsuch authored the majority opinion.

Gorsuch and Brett Kavanaugh are more "gettable" for the Court's liberal minority and liberal plaintiffs than are Thomas and Alito. Gorsuch has libertarian sensibilities, and often joins the Court's liberals in criminal-justice cases. Kavanaugh is a Roberts fanboy. He reportedly had a blown-up picture of himself and John Roberts on the wall of his D.C. Circuit chambers. Kavanaugh rarely stakes out unpopular positions; he was in the majority in 97 percent of cases heard in the Court's 2020 term, far and away the highest proportion of any of the nine justices. He was more likely to rule with Kagan (67.7 percent) and Stephen Breyer (69.4 percent) in 2020 merits cases than Clarence Thomas (66.1 percent). [...]

With a string of controversial cases on the Court's docket this year on issues ranging from abortion to affirmative-action, Roberts could enlist Kagan and a future Justice Jackson to craft compromise verdicts with either Kavanaugh, Gorsuch, or Amy Coney Barrett. The latter three justices were in the majority in more than 90 percent of the Court's 2020 cases, while Alito (83 percent) and Thomas (81 percent) were not. Elena Kagan (75 percent) was not far behind either Alito or Thomas. If Jackson aligns herself with Kagan, it's possible the compromise-minded Roberts turns to the pair of pragmatic liberal justices instead of the mavericks to his right.

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