Making Sense of Justice Kavanaugh’s vote in Torres v. Madrid
On Thursday, the Court decided Torres v. Madrid by a 5-3 vote. Chief Justice Robert wrote the majority opinion, which was joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Gorsuch wrote the dissent, which was joined by Justices Thomas and Alito. (Justice Barrett did not participate). Co-blogger Orin Kerr wrote a helpful post that explains the current state of Fourth Amendment doctrine. Here, I’d like to use this case to illustrate fractures on the Roberts Court.
I think we can safely presume that Justice Kavanaugh cast the tie-breaking vote. Had he agreed with Justice Gorsuch, the case would have split 4-4, affirming the lower court without setting a precedent. But the timing of this case does not suggest that Kavanaugh labored over which side to pick. Torres was argued on October 14, a few weeks before Justice Barrett joined the Court. And the case was decided on March 25. That five-month span was a pretty quick turnaround for a sophisticated, and sharply divided CrimPro case–especially with so many barbs flying between the majority and the dissent. If Kavanaugh had been on the fence, there would be some artifacts of that vacillation. For example, the opinion would have taken much longer to publish. I’d expect a handdown in May or June, rather than in March. There would be far more footnotes with caveats and distinctions, as a way to water down the majority. And so on. But from my read, the vote at conference was 5-3, and it stuck that way.
I think this join is emblematic of the close bond between Chief Justice Roberts and Justice Kavanaugh. In April 2019, Richard Wolf wrote a provocative article in USA Today, titled “Conservatives’ takeover of Supreme Court stalled by John Roberts-Brett Kavanaugh bromance.” At the time, Kavanaugh surrogates were not happy with the “bromance” comparison. I wasn’t surprised. In the wake of the Kennedy retirement, I consistently told reporters that I expected Kavanaugh to fall closest to Roberts in temperament and jurisprudence.
Over the past two years, the bromance has budded. In OT 2018, Roberts a
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