With Associate Justice Amy Coney Barrett safely ensconced on the Supreme Court, conservatives appear to hold a rather dominant 6-3 majority there. (Or at least until the court-packing begins if Democrats sweep the elections one week from today.) But to be honest, it’s really more like a five and a half to three and a half majority, considering the way that Chief Justice John Roberts has been voting ever since Kennedy retired. And that phenomenon is what at least some liberals are pinning their hopes on in terms of avoiding a complete blockade of “progressive” rule in the United States. At the Washington Post, Dana Milbank does a bit of cheerleading for the blue team, offering a glimmer of hope that all may not be lost. He implores the Chief Justice to “act, and fast” to prevent his court from turning into some sort of conservative version of Animal House.
Monday’s Senate confirmation of Amy Coney Barrett to the Supreme Court, preceded by a pell-mell scramble to seat her before next week’s election and followed by an unseemly campaign-style celebration at the White House, shreds whatever remained of the high court’s integrity and independence.
Whether the court regains its independence or cements itself as a third partisan branch of government is now largely up to Chief Justice John Roberts. If he does not act, and fast, to mitigate the court’s politicization, Democrats will be fully justified in expanding the court’s membership to restore balance — and indeed will face a public outcry if they don’t.
You wouldn’t have needed a crystal ball to predict before even reading this op-ed that Milbank would use the excuse of a “hyperpartisan” court as justification to begin packing the court as soon as possible. And of course, he doesn’t disappoint, wagging that threat in front of the country right off the bat.
But there’s a very large question looming over Milbank’s tirade. What precisely does he believe John Roberts can do to “mitigate the court’s politicization?” The author doesn’t say. He simply commands that Roberts pull off this miraculous transmogrification immediately or face the wrath of the nation’s liberal mobs and the Democrats who they believe will force extraneous justices onto the Supreme Court.
Perhaps Milbank needs to be reminded that holding the position of Chief Justice doesn’t imbue someone with any sort of superpowers. True, Roberts has the luxury of assigning the task of writing opinions in many cases (though other justices are free to compose their own concurring or dissenting conclusions). He also has some other, procedural duties and special responsibilities, such as swearing in the new president, etc. But at the end of the day, when it comes down to the deciding of cases, he remains one justice with one vote, just like the rest of them. He can’t tell his eight colleagues how they are allowed to vote or what the “correct” interpretations of the Constitution are.
The most John Roberts can do to throw America’s liberals a bone is to vote with the three remaining fully liberal justices. And that’s something he’s demonstrated a complete willingness to do on multiple occasions already. His desires to avoid the perception of a politicized, ideologically divided court are well known and he’s likely to keep crossing that line whenever he sees the opportunity arising. But the addition of Amy Coney Barrett leaves the court with five out of nine votes that will, in all likelihood, be cast in a very originalist fashion going forward.
Conservatives and Republicans didn’t “cheat” in any way to arrive at the current court balance. They won presidential elections and Senate majorities at the times required for them to have the chance to place their own judges on the bench. Nobody “robbed” liberals of anything in terms of the court’s makeup. They simply didn’t win enough elections, or at least not the right ones.