Amy Coney Barrett’s appointment instantly increased the imbalance on the Supreme Court from 5-4 to 6-3, exactly as the conniving cabal of McConnell and the Federalist Society planned it.
But it isn’t just the inequity that Barrett brings to the bench, her presence there also affects the power dynamic.
When SCOTUS had a 5-4 split, Chief Justice Roberts’ decision often served as the deciding vote in close cases, most notably when he upheld the constitutionality of the Affordable Care Act in 2012. But Barrett’s presence changed all that.
“His vote does not help the liberal wing to form a majority, and it is not needed for the conservative wing to form a majority,” Professor Melissa Murray from NYU School of Law observed during a virtual panel Tuesday. She also noted there’s been “some inclinations from him to either join the majority to shape the way that decisions are written, or perhaps even to join the liberal wing to take a stand about particular decisions.” But that’s poor seconds for a Chief Justice.
The downgrading of Roberts’ vote from the one that most often determined SCOTUS verdicts to just another minority voice is, to put it bluntly, a demotion and a very deliberate one. For a long time now, the right-wing Federalist Society has wanted to subvert Roberts’ power to shape decisions. They abhorred his preparedness to sometimes deliver a majority decision to the liberal justices by siding with them. Barrett’s accelerated advancement was key to stripping Roberts of that power.
As Professors Chemerinsky and Murray made crystal clear, Roberts is no longer the swing vote because there no longer is a swing vote. The power shift has effectively wiped it out completely.
In effect, Barrett is now more powerful than Roberts. Not only the youngest on the bench but also the most extreme of the right-wing justices, her ascent effectively ousted Roberts from the prime position to shape SCOTUS decisions. By deliberating in lockstep with Alito, Thomas, Gorsuch and Kavanaugh, Barrett thus gives the right-wing faction control of all SCOTUS verdicts from here on, without any input from Roberts.
In The National Law Journal report, Erwin Chemerinsky, Dean of UC Berkeley School of Law explains how drastically SCOTUS decisions have already been affected by this change in the power dynamic. Two COVID-19 cases last year illustrate his point.
In the South Bay case and a similar lawsuit challenging restrictions in Nevada, a 5-4 majority, made up of Justices Roberts, Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, denied an injunction seeking to bar enforcement of the restrictions.
In November, about a month after Barrett joined the court, the 5-4 majority flipped in Roman Catholic Diocese of Brooklyn v. Cuomo, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Barrett ruling in favor of religious groups.
The devastating impact this group can force upon the American populous is precisely what Republicans generally, and the Federalist Society specifically, want to see. Nor will it be long before the results of their underhanded machinations are felt in major cases.
On Monday, the Supreme Court announced that it will review Roe v Wade this fall. In a report headlined “Amy Coney Barrett and Brett Kavanaugh Will Get Their Chance to End Roe v. Wade,” The New Republic reported:
The justices have not heard a direct challenge to Roe since a troika of moderates saved its central holdings in Planned Parenthood v. Casey in 1992.
But the only conservative moderate left on the Supreme Court bench is Chief Justice Roberts and he no longer has the power to make a difference. Thomas, Alito, Gorsuch, Kavanaugh and Barrett will waste no time in demolishing both Roe and Casey, thereby turning the clock back almost 50 years and giving states free rein to legalise or ban abortion as they see fit.
It will be the end of an era — and that’s just the beginning of the retrograde right-wing reforms planned for the near future.