How far will the Supreme Court's new conservative supermajority go? It's the question on the mind of everyone who cares about the court.
Surprisingly, comments in three major oral arguments held since Justice Amy Coney Barrett took her seat offer significant clues. Across these cases, several conservative justices asked questions revealing a desire to find compromises that, to some degree, could satisfy both sides of the partisan divide.
Start with Fulton v. City of Philadelphia. The case arises out of Philadelphia's decision to stop referring foster children to Catholic Social Services, a private agency with a religious objection to certifying same-sex couples as foster parents. Catholic Social Services sued, arguing that the city's decision violated its religious freedom.
In recent years, conservative justices have issued a string of religious freedom rulings in favor of Christian challengers to protections for the LGBTQ community. But in exchanges at oral argument on Nov. 4, Justice Brett M. Kavanaugh made clear he would have none of this.
"It seems like this case requires us to ... balance ... two very important rights," Kavanaugh observed. "The religious exercise ... right ... and the same-sex marriage right." Given this, he continued, "we should be looking ... for win-win answers."
Kavanaugh offered one possibility. If the court rules against Philadelphia, he wondered, couldn't the city still protect the right of same-sex couples to participate in the foster system by forbidding Catholic Social Services to reject LGBTQ applicants outright, instead requiring the agency to "refer any same-sex couple to one of the [30] other agencies" that would gladly serve them? However, a city where no other agencies were available would be free to require a Catholic agency to serve same-sex couples.
Next consider Jones v. Mississippi. The question here is what a judge must do before sentencing a juvenile offender to life without parole. In a pair of prior rulings, the Supreme Court suggested that under the Eighth Amendment, only juvenile offenders "whose crimes reflect permanent incorrigibility" could receive this punishment. Yet in Mississippi trial judges hand down such sentences without specifically finding juveniles incorrigible.
Mississippi's lawyer argued that no incorrigibility finding should be necessary. Chief Justice John Roberts and Barrett were unsympathetic.
"I have to say," the chief observed, "it [doesn't] seem like very much" to ask a trial judge to utter "one sentence" to make it clear that an incorrigibility finding had been made. Barrett joined in almost incredulously: "So ... it's making the state jump through too many hoops to put something ... on the record?"
The implication was clear. A ruling against Mississippi would still leave state prosecutors free to pursue life without parole for juvenile offenders as long as prosecutors convinced judges of their incorrigibility. On the other hand, a ruling against the petitioner would leave juvenile offenders with virtually no recourse, even if at some point they could show they'd been rehabilitated in prison.
The conservative justices weighed similar concerns during oral arguments in the Affordable Care Act case Nov. 10. Originally, the ACA provided that certain individuals "shall" purchase health insurance or pay a tax penalty. In 2017, Congress zeroed out the tax. Challengers argued that the remaining command to purchase insurance was unconstitutional and the entire act should be invalidated as a result.
At the heart of the court's skepticism with this argument is the fact that once the tax penalty is eliminated, there is nothing pressuring individuals to purchase unwanted insurance.
In other words, even if the challengers lose the case, they could still easily avoid the harm they claim — the command to buy insurance. The harm of a ruling in the opposite direction, however, would be far harder to avoid. What choice would individuals with pre-existing conditions have if the ACA were invalidated and insurers were again free to deny them coverage?
Taken together, these comments signal a laudable centrist pivot by key conservative justices using an emerging judicial philosophy I call the "least harm" principle. Under this principle, the court does not resolve hard cases by rendering some best guess as to our Constitution's centuries-old meaning — or to our evolving societal values. Instead, it rules against the side that can most easily minimize its harm.
Least harm reasoning can preserve public confidence in the court because it avoids creating full-on losers. It won't apply in every case, but in this dangerous and partisan moment, the kind of sensible middle-ground rulings it yields are precisely what our country needs.
Aaron Tang is a professor of law at the University of California, Davis, and a former law clerk to Justice Sonia Sotomayor. He wrote this article for the Los Angeles Times.
