Thomas? Kavanaugh? Roberts? Conservatives dominate Supreme Court but lack clear leader

The Supreme Court’s six Republican-appointed justices clearly dominate the bench, but as they reshape American law there is little consensus among court watchers over who is the conservative wing’s true leader.

Some legal experts say it’s Brett Kavanaugh, the court’s median justice. Others point to the longest tenured justice, Clarence Thomas, whose hard-line conservatism has increasingly moved from the court’s fringes to its frontiers as the bench has swung rightward.

Some mention the “attack dog” role of Samuel Alito, an unapologetic conservative in a hyperpolarized era whose defiant opinion scuttling Roe v. Wade erased the nearly 50-year-old constitutional right to abortion and earned him conservative plaudits. Others say leadership varies by issue, noting for instance that Chief Justice John Roberts may end up writing majority opinions in hot-button cases this term.

What is clear enough is that after a term that saw the overruling of Roe, the expansion of gun rights and the narrowing of environmental regulatory power, the 6-3 conservative majority court is showing no signs of slowing down, with the justices taking up disputes this term over affirmative action in colleges, voting rights and LGBTQ discrimination.

According to Adam Feldman, a political scientist who runs the statistical analysis blog Empirical SCOTUS, court leadership is a question of the justices’ ideology and relative power.

“On the relative power of the justices right now,” Feldman said, “I think we can say that Kavanaugh is probably the most powerful.”

The court veered sharply right with the addition of former President Trump’s three nominees. As a result, the justice who now occupies the court’s ideological median position is Kavanaugh, according to the influential Martin-Quinn score.

Kavanaugh’s position means he counts four members to his left — Roberts and the court’s three liberals — as well as four justices to his right, in Neil Gorsuch, Amy Coney Barrett, Alito and Thomas. This gives him leverage.

In cases where Roberts and the liberals are pitted against the court’s four more conservative justices, Kavanaugh not only represents the tie-breaking vote, but he can also use his vote to sway the extent of the court’s opinion, Feldman said. This is possible because under Supreme Court procedure, it falls to the senior-most justice in the majority to choose who writes the governing opinion.

“Kavanaugh can say, look, I’m only going to venture out this way if I get the opinion myself, or else I’m going in the other direction,” Feldman said. “So he has power in a few different ways, and ultimately he can force the hand of the person who’s assigning the case if he’s that vote.”

While previewing the court’s new term, Irv Gornstein, executive director of Georgetown Law’s Supreme Court Institute, indicated that he sees Kavanaugh as wielding the most influence.

“We’ve known for some time that the court was headed in a rightward direction, with the only questions being how far and how fast,” Gornstein said. “Last term tells us the answer depends on Justice Kavanaugh.”

“Make no mistake,” he added, “for now and the foreseeable future, this is Justice Kavanaugh’s court.”

Other legal experts saw the conservatives’ power dynamic differently.

Two former Thomas clerks — Carrie Severino, who heads the conservative Judicial Crisis Network, and attorney Helgi Walker — depicted their onetime boss as a commanding intellectual force among the court’s conservatives.

“His vision, his consistency and adherence to principles have all been something that many members of the current bench were already looking to and learning from well before they came to the court,” Severino said. “He’s been working in the area of originalism and textualism for 30 years and it’s just taken that long where there’s finally been a majority of justices who agree with him.”

Walker, a partner at the law firm Gibson, Dunn & Crutcher, said no discussion of conservative court leadership would be complete “without talking about Justice Thomas as a central figure.” She remarked on Thomas’s “intellectual horsepower, the longevity, and the moral authority,” and recalled her former boss’s sense of humor and gregarious personality.

Robert Tsai, a constitutional law professor at Boston University, said in his view, “it’s Clarence Thomas’s court.”

He described Thomas, 74, as an adherent of conservative “movement ideology,” meaning he is “a true believer in originalism who will employ that methodology in the service of socially conservative outcomes.” Thomas exerts influence over the conservative wing in more formal ways too. When Roberts is outflanked to his right, the duty falls to Thomas to assign opinion writing.

“When Roberts is in a majority, he will be pulled right or lose the power to assign and be a hapless dissenter,” Tsai said. “The others don’t have the experience or gravitas yet to hold together a group whose members might occasionally get cold feet.”

When the court last June eliminated the constitutional right to abortion, Roberts wrote a concurring opinion saying he would have reined in Roe but not overturned it. Significantly, Roberts’s absence from the majority opinion meant Thomas could tap Alito to write the decision in Dobbs v. Jackson Women’s Health Organization that fundamentally changed America.

Steve Schwinn, a law professor at the University of Illinois Chicago, described Alito as the conservative’s “attack dog,” as reflected by Alito’s “no-holds-barred, in-your-face, and take-down-everything-at-any-cost approach.”

“I agree that Roberts and Thomas are the true leaders,” Schwinn said, “in that they’ll get to decide when to unleash Alito.”

Harvard Law professor Laurence Tribe said the current court has no single conservative leader.

“I suppose I’d say leadership these days varies by issue because the court is more deeply divided and fragmented than ever,” he said, “and the chambers are suspicious of one another even if they’re on the same side of various disagreements, especially after the extraordinary leak of the Alito draft in Dobbs.”

“With respect to matters of racial preference and affirmative action, in cases like those about to be argued this Halloween, Roberts will certainly write for the court and is bound to play a leading role on the question of just how far back to turn the clock,” Tribe added.

Erwin Chemerinsky, dean of the University of California Berkeley Law School, said that with six conservatives on the bench and a solid conservative majority, no one justice among them controls the conservative agenda.

But if he had to pick one, he’d point to Roberts. “Notwithstanding Dobbs and a few others,” Chemerinsky said, “he is usually with the conservatives and assigns the majority opinion.”

“Ideologically, I think it is Alito who most articulates the conservative agenda,” he added. “Thomas is by himself too often to be that person.”