Way back when, I spotted a great parodic bumper sticker during the 2008 presidential campaign. It read: "Bush-Cheney 2008: Why should the law stop us now?"
Yesterday in Allen v. Milligan, the Supreme Court defied expectations and, in a 5-4 ruling, preserved some semblance of a Voting Rights Act by striking down Alabama's congressional maps as illegally racially gerrymandered. Chief Justice Roberts and Justice Kavanaugh "crossed the aisle", so to speak, and now everyone is trying to figure out why (for Roberts in particular, whose hostility to voting rights long predates his time on the Court).
It is a sign of our cynical era that virtually nobody thinks the answer is "because they felt this was the right legal answer." This is especially striking because, when a justice does vote against their presumed ideological proclivities, that would seemingly spawn a greater inference that they genuinely believed in their position's formal legal correctness. If they faced the happy coincidence of "the law supports the defendant" and "I, personally, support the defendant", why wouldn't they raise a glass to their good fortune and vote accordingly?
But on the constitutional law listserv I'm a member of, everybody seems to think that this is some political legitimacy play. The conservative members cannot fathom that their preferred outcome is not legally correct; they think that Roberts and Kavanaugh voted in some ill-conceived attempt to "store political capital" and stave off allegations that the Court has become a six-member right-wing wrecking ball. Needless to say, they hold such a practice with nothing but contempt; they think Roberts and Kavanaugh are squishes. The liberals in the group, of course, do think the outcome is legally correct, but they too seem to think it's fanciful that something as trifling as "the law compels it" motivated Roberts' and Kavanaugh's votes. After all, they might ask, after years of taking a flamethrower to settled judicial doctrine and longstanding precedents in service of a hard-right agenda, why should the law have constrained them now? They also don't give much, if any, credit to the justices for any "legitimacy" chits they might have thought they earned.
It is hard for me not to credit the cynicism here. But if I were to craft a non-, or at least less-, political explanation for Roberts' and Kavanaugh's votes, it would be to distinguish between the millenarian and Burkena conservative impulses seen on the Court.
The former is the pull of reactionary revolution -- you see the promised land, and are ready to chop down anything in your path that poses a barrier to reaching it. In this mode, the Court's conservatives will burn down precedent, torch settled expectations, and tank the Court's political legitimacy in pursuit of a vision of idealized legal conservatism that they insist is right and true. "The heavens may fall that justice be done." Millenarianism is the impulse that yielded Dobbs, Bruen, and Kennedy, the new "major questions" doctrine and the possible overturning of Chevron, the prospective end to affirmative action and the stunning plausibility of adopting the Independent State Legislature doctrine. Radical alterations of law with unknown and unknowable consequences, in deference to abstract right-wing legal theory and/or concrete right-wing political results. Thomas, Alito, Barrett, and Gorsuch all seem to be in thrall with the millenarian vision, albeit with perhaps slightly different visions of what utopia should look like.
The Burkean mode, by contrast, is the mode of caution, prudence, and restraint. It shies from radical change, it is cognizant of the many things it doesn't know. Recognizing the complexity of the legal machine it oversees, the Burkean conservatives are reluctant to fiddle with the dials too readily. They're willing to trim and cut, but look skeptically upon sweeping change. This impulse, at least, is found in Roberts' Dobbs concurrence, the mifepristone stay, and the so-far unwillingness to endorse any of the yearly crackpot attempts to kneecap the Affordable Care Act. It is not about liberal outcomes (as my placing Roberts' Dobbs opinion in the category should make clear); in other times, Burkeanism might operate as a voice of restraint against sweeping progressive legal victories (recall Roberts' Obergefell opinion). But on this Court, the realistic choices are between radical right-wing change and upholding the status quo -- it's hard to think of a single example of a Court ruling since Barrett's ascension that actually represents change (radical or otherwise) in a progressive direction (the liberal "victories" have generally taken the form of "managing to hold the line against a conservative assault").
On the current Court, Roberts and Kavanaugh have been most susceptible amongst the conservatives to the Burkean impulse, albeit typically in no more than halting fashion. But it's more than just naked political appeasement or trying to impress the libs (neither justice, I think it is fair to say, has shown either much interest or much success in garnering even begrudging liberal admiration). Burkeanism is a branch of conservatism too, and it shouldn't surprise that within the conservative coalition there would be those who find it comparatively more appealing. Some conservatives look at the messianic fervor that has gripped their compatriots and get antsy. They certainly feel the temptation. But ultimately, they are not quite so keen to smash the machine; they are not quite so confident they understand the fallout. And so, periodically, they step back from the abyss, and restrain themselves. Perhaps that's what happened here.
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