To hear the headlines tell it, the Supreme Court is a synecdoche battleground of our polity, a fraught locus of partisan angst and political maneuvering. If the president we don't like gets just one more appointment, America will be doomed to a permanent apocalypse in the style of either 1984 or The Handmaid's Tale (choose whichever you find more horrifying).
The reality is more mundane and complicated, as reality tends to be. Most Supreme Court decisions are unanimous — only about 15 to 20 percent see narrow, five-vote majorities — and the fault lines do not always cleave where partisanship predicts. One such unexpected line may be developing in the high court now: a civil libertarian alliance between Justice Neil Gorsuch, President Trump's first nominee, and Justice Sonia Sotomayor, appointed by former President Barack Obama in 2009.
Gorsuch has yet to reach the two-year mark in his tenure, so the data here is limited, but these justices have already partnered repeatedly in defense of robust due process rights and skepticism of law enforcement overreach.
Just last week, for example, Gorsuch issued a dissent with Sotomayor as the lone concurrence objecting to the court's refusal to hear a case concerning the right to a jury decision in determining restitution payments. This does not sound like a sexy issue, granted, but as Gorsuch notes, the "effects of restitution orders … can be profound. Failure or inability to pay restitution can result in suspension of the right to vote, continued court supervision, or even re-incarceration." Where the rest of the court accepted lower court arguments for a limited reading of the Sixth and Seventh Amendments' guarantee of jury trial, Gorsuch and Sotomayor push for a more robust interpretation, urging that restitution be determined not by a single official of the state but by a panel of ordinary citizens.
The pair also teamed up to dissent to the court's rejection of another due process case in November, that time swinging for strict standards in the state's presentation of forensic evidence on Sixth Amendment grounds. If the Constitution secures defendants the right to confront their accusers, Gorsuch wrote, that right should extend to questioning the specific forensic analysts whose lab results are used to secure a conviction.
Unfortunately, the Supreme Court's past handling of these topics has "sown confusion in courts across the country," Gorsuch charged, complicating the work of lower courts and risking "mischief," "mistake," and even "false convictions." Now, as attorney Mark Joseph Stern explains at Slate, "the ability of future defendants to uncover forensic manipulation may depend upon Gorsuch and Sotomayor's ability to convince their colleagues" that the Sixth Amendment clause securing our right to confront accusers "means what it says."
Opinions have yet to be published for Timbs v. Indiana, a civil asset forfeiture case, or Gundy v. United States, which concerns prosecutorial discretion, but oral arguments for both likewise saw Gorsuch and Sotomayor demonstrating a civil libertarian predilection for limiting state authority and protecting the rights of the accused (or, in the perverse situation that is civil forfeiture, the not-accused).
"We say that vague criminal laws must be stricken," Gorsuch said in the Gundy hearing. "What's vaguer than a blank check to the attorney general of the United States to determine who he's going to prosecute?" Sotomayor soon tagged in to continue this line of argument. "I think a fundamental issue that Justice Gorsuch has been aiming at is — especially in criminal law — is it just to delegate to the attorney general a fundamental question about who gets covered or doesn't get covered by a statute?" she asked.
The Gorsuch-Sotomayor answer is a clear "no": It is not just to let a single official decide whether a law applies to any given individual. And though it remains to be seen how the court will decide, left-wing Justice Ruth Bader Ginsburg seemed inclined to agree, just as conservative Justice Clarence Thomas, a longtime civil asset forfeiture critic, will likely share the civil libertarian opinion in Timbs. The momentum of Gorsuch and Sotomayor's alliance could be crucial to securing important court victories for criminal justice reform and related civil liberties causes.
But they are still just two of nine. Ginsburg, Thomas, and the other five justices all aligned against Gorsuch and Sotomayor in those Sixth Amendment cases. A two-justice civil liberties wing is just that — a wing. Sometimes it may steer in the right direction, but it's far from the whole bird. Without more reliable partners on these issues, Gorsuch and Sotomayor will often find themselves penning necessary but lonely dissents.
Nevertheless, the optimist in me remembers that before Gorsuch joined the court, Sotomayor was sometimes a sole voice crying in the wilderness. Now, at least, her call for justice will be twice as loud.