John O. McGinnis, a law professor at Northwestern University, writes today that the SCOTUS is now the "Barrett Court." In an admirably lucid article he argues that "the newest justice will change the dynamic among her colleagues." And, interestingly, we may see what McGinnis means by a 'changed dynamic' very soon--in the Pennsylvania election law case.
The way this changed dynamic works is actually quite simple. Chief Justice Roberts has been able in quite a few cases to shape the Court's decisions in ways that he prefers. He has been able to do this by alternately siding with either the four conservative justices or with the four liberal justices. Whichever side he takes in a 5-4 decision, as CJ he gets to either write the decision himself or choose who will write it. He also is able to influence the shape of the decision with the understanding that if the others don't go along with him, he can always go the other way.
With the solidly conservative Justice Amy now confirmed, that entire dynamic is changed--or, will change, as long as the five conservative justices are in basic agreement. The reason is that the five conservatives won't need Roberts' vote, and if he sides with the three liberals it won't make any difference. If he goes with the five conservatives with the intention of shaping the decision, that approach becomes much more difficult because they don't need him and can simply decline to join with him. Further, Justice Thomas could play a much larger role, by virtue of being the senior justice on the Court:
if [Roberts] is not in the majority when the rest of the conservatives are, the right to assign the opinion will then pass to Thomas. Thomas remains the most committed originalist on the Court and can use the opinion assignment to put the law on his own preferred trajectory. The diminishment of Roberts’s power thus shifts authority to Thomas. Look for him to write more originalist opinions for the Court. Thomas can also assign opinions to the other strong originalists, including Barrett.
This is why I was so excited to see Thomas at the White House ceremony for Justice Amy. I took it as a signal that the two are of similar judicial philosophies. Of course, in any given case things could get more complicated than this, but the tendency seems clear:
The strengthening of the originalist camp leads directly to more originalist opinions. A justice assigned an opinion has some leeway to write it the way he or she wants, and more originalists will enjoy the drafting pen. Moreover, justices can move the law with powerful concurrences and even dissents, and we will see more such originalist efforts with more justices joining them.
Roberts' Pennsylvania decision was a 4-4 case. With Justice Amy now on board, this 'changed dynamic' could play out in her first major decision. If Justice Amy sides with the four conservatives, if they hold together--and the concurrences by Gorsuch and Kavanaugh in the Wisconsin case suggest that they will--then Roberts will find himself either in the minority or compelled to execute and embarrassing public volte face.
ADDENDUM: There's something about this photo I really like:
Maybe we’ll get lucky & Robert ‘ll decide to hang up his robe & retire since he’s no longer in the spotlight. ;<)ReplyDelete
Keep in mind that Breyer is 82.Delete
...and that Sotomayor is 66, has type 1 diabetes and is apparently obese. This is a difficult disease which may become increasingly troublesome as patients age and when obesity is present.Delete
Very apparently. Sloppy obese, you might say. Not too wise.Delete
Yep many overlook the Sotomayor type 1 thing. Average life expectancy is 68 for women.Delete
1-Have also seen some speculation that Roberts' obsession with the "appearance" of partisan divides in the judiciary (pretending, for whatever illogical reason, that they do not exist) may ironically cause him to side with the conservatives anyway. A 5/4 decision always smacks of "along party lines" whereas a 6/3 will have the weight of a strong majority. But its like flipping a coin with the guy: philosophically I can respect his stance that the courts should stay out of as much as possible... but he seems to think that there will be a quid pro quo.
2-I think we should temper our assumptions that ACB will automatically lean the way we want on every specific issue. Part of the point of an originalist, and indeed as seen in many unpredictable outcomes of the court, is that the supposedly "conservative" wing of the SC tends to think about and ponder a lot more - and sometimes come to different conclusions. The left wing is entirely predictable because they vote exactly the way a DNC operative would. The right leaners, not so much. Do not presume that the PA case, on its merits (and I am not even a social media lawyer, much less a real one), can onyl reach one conclusion.
3-With my tinfoil hat on, if he is implicated in any fo the shenanigans of FARA, Epstien, or other rumors... I sure wish Trump would give him the ultimatum on or about November 4 to vacate. Especially if the Senate holds.
More confirmation of your idea: https://redstate.com/streiff/2020/10/27/coney-barrett-supreme-court-clarence-thomas-n270620
Heh. Fun article. Everyone talks about Scalia, but Thomas is my judicial hero.Delete
Thomas is a prize, clone him.Delete
I have a feeling that Chief Justice Roberts would prefer that Congress actually do it’s Constitutional job. This causes his views to go this way and that with no real discernible continuity other than Congress and the Executive should not abuse the court. I take him at his word that judges are (really should not be) partisan and it appears he has that as a foundational belief, but the reality is that everyone, including him, is biased in one way or another.ReplyDelete
Well, it's the job of courts to ref things, when other branches shirk their Constitutional jobs.Delete
Roberts doesn't buy, or can't face this?
What happens when Roberts assigns himself to write the majority opinion, but the four conservatives signs a concurring opinion if they don't like Roberts opinion? Does such a occurring opinion become what amounts to the majority opinion, and Roberts opinion effectively become a concurring opinion?ReplyDelete
Don't know, but I'm curious.
Actually, now Roberts could be opposed by FIVE justices. Those five could agree to an opinion written by one of their group. Roberts would be left to "concur in the result" but his opinion would have no weight. He would obviously want to avoid that. Kavanaugh is regarded as closest in viewpoint to Roberts, which is why I was interested to see K. disagree sharply with Roberts re PA and repeat his criticism in the next case.Delete