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.
Interesting analysis, but what of all the past Supreme Courts where the Chief Justice was not the swing vote?
The fact that the main swing voter was also the Chief Justice is really incidental, the point being that now no swing voter (from either side) can make a difference while this inequity continues.
I highlighted Roberts as the swing voter, not only because Roberts was the swing vote most of the time (there were occasionally others), but also because, as Chief Justice, he had the most to lose from the new power dynamic. I can’t imagine how he must feel about losing that power. His legacy just went up in smoke because he no longer has any control over SCOTUS outcomes anymore and the right-wingers he has now will reap devastation on his watch.
Incidental, that’s my point, so we cannot simultaneously argue that not being the swing vote is “poor seconds for a Chief Justice.”
Yes, we can. It’s worse for the Chief Justice when he is the swing voter than if it was one of the other justices. Suddenly loses control of decision-making when he’s been in control for so many years reduces him effectively to 1. just another justice and 2. ineffective as Chief Justice. It seems obvious to me that Roberts would care about that.
So are you saying that all of the past Chief Justices who were not swing votes were ineffective as Chief Justices?
No. But it’s interesting you thought so.
The history is complicated by both some Justices not turning out the way certain Presidents had hoped, and also by the shift in deference on the part of the Senate to a President’s picks which ramped up during Nixon’s time in office. Prior to then you had to go all the way back to Hoover to find a nominee rejected by the Senate and Nixon had more than one. However, he got four picks in during his six years and only one (Blackmun) blindsided him with turning out to be overall progressive. Many would say he was one of the Court’s most liberal Justices in fact. Still, Nixon’s dream of remaking the Court from what he thought was the “activist” liberalism of the Warren Court was significantly advanced. Ford got one pick and while Justice Stevens was at first predictably moderately conservative he shifted over time to become more progressive despite identifying himself as a Republican. However by the time of his own retirement he was considered solidly on the more liberal side of the Court. Carter got no chances to pick someone for SCOTUS. Reagan however had multiple picks that completed the transformation of the Court into the fairly solid (till recently – it’s about to get RWNJ I fear) conservative body we’ve come to know the past 20-30 years. Justice Souter who’s nomination Bush 41 freely admitted believing was his biggest mistake was the last real “surprise!” Justice – he turned out to be progressive, stunning Bush and even folks on our side.
The result of all the Nixon and Reagan picks made Justices O’Connor and Kennedy swing votes, albeit at different times but once O’Connor retired it fell squarely on Kennedy and it’s no wonder that conservatives wanted him GONE. And while we’ll probably never know what happened behind the scenes to cause him to suddenly announce his retirement leading to Kavanaugh’s appointment which Kennedy apparently fought like hell for (Kennedy had already hired clerks for the next term and had no health issues but with the troubles swirling around Trump and his son’s potential role in the financial stuff that appeared to have some links Justice Kennedy appears to have “negotiated the terms of his surrender”) Kennedy was the swing vote on a lot of important cases. Gorusuch kept the balance but Kavanaugh’s appointment meant someone else would have to sometimes “swing” or the Court would go full bore conservative and Roberts actually cares about his legacy and doesn’t want history to remember his Court as one that (at least rapidly) and in sweeping fashion stripped away the rights of average Americans.
Now, as Ursula notes he doesn’t have that ability to tap the brakes now and then. Keep in mind it only takes four Justices to accept a case for the Court’s docket. Both liberal and conservative Justices jealously guard what goes down in their conferences including which Justices vote to accept or reject a given case. But I can’t help but believe that the last thing Roberts wanted was for abortion to come up this term. Maybe in a few years, but not now. And, while he might have (prior to Barrett) been able to persuade Gorsuch at least to hold off on accepting this case and browbeat a newbie into doing so he’s outnumbered now. Kavanaugh and Barrett don’t give a flying fuck about Robert’s legacy or that of his Court’s, and in Thomas and Alito they’ve got solid allies with as fervent a desire to overturn reproductive rights (again I point it this all is headed way beyond abortion itself) as they are.
It will be interesting to see what Roberts does. Does he join the others to create a 6-3 conservative rollback of reproductive (and other) rights or become a sometimes gadfly and as Chief Justice issue some blistering dissents to try and salvage his legacy? Does he work like hell to form a (sometimes) swing block with Gorsuch who has offered up a couple of minor surprises? In my fantasies last night I hoped he’s already done so, and the result of this abortion case will wind up being a 5-4 decision affirming the lower court ruling and if not stopping then delaying attempts for the KKKristian KKKrazies to roll back reproductive rights for at least a few more years. And maybe some new Justices appointed by Democratic Presidents to replace Thomas and Alito who are getting fairly old themselves.
You have a point but the three people nominated by trump and confirmed were chosen because of the way they’d vote on certain issues-abortion, LGBT+, etc. I would say the ability to destroy Roe and go into the history books as having done so is giving the five members who want nothing more than to do exactly that wood or wet panties. Three of the five have publicly stated Roe was wrongly decided. Two of the members have publicly spoken against even birth control being available to women.
Females in this country are screwed unless or until the damage done to the federal courts, and the S.C. in particular, is repaired. With Manchin and the rest of the blue dog ilk, I don’t see this happening.
But I’m sure Susan will be clutching her pearls when Roe is gone.
How about avoiding crude phrases in comment? In the world of wordsmithing there is far more than one analogy available. Why is it so many people are fixated on just the one?