With the confirmation of Associate Justice Amy Coney Barrett, a lot of people are talking about a 6 to 3 conservative majority, but things don’t always work out that neatly. Chief Justice John Roberts has now become the ‘swing vote’ that people used to see in Associate Justice Anthony Kennedy, having sided with the liberals in important cases such as the one which allowed the Patient Protection and Affordable Care Act to stand. The Chief Justice wrote the opinion on that one, the crazy reasoning that the individual mandate could stand because Congress was, in effect, using its power to make taxes.
In some ways, the Chief Justice has softened Court opinions, dragging along Justices who might have preferred something stronger. James Taranto of The Wall Street Journal thinks this may drag him more into the conservative side, but it holds a danger that Mr Tatanto didn’t consider:
If Roberts joins the liberals, Thomas gets to assign the opinion.
By James Taranto | October 26, 2020 | 6:00 PM EDT
“Chief Justice Thomas” was the headline of an article I wrote in the Journal late in 2004. I urged President George W. Bush to elevate Justice Clarence Thomas if Chief Justice William Rehnquist retired the following year. Mr. Bush didn’t follow my advice when Rehnquist died in September 2005. But as Amy Coney Barrett dons her high-court robe, Justice Thomas may find himself filling an unaccustomed leadership role.
Over the past decade Chief Justice John Roberts emerged as a frequent swing vote when the associate justices divided 4-4 along familiar liberal-conservative lines. In numerous cases—most famously National Federation of Independent Business v. Sebelius (2012), which upheld ObamaCare — he cast his vote with the four Democratic appointees, although his opinions were sometimes less sweeping than theirs. In June Medical Services v. Russo (2020), the court voted 5-4 to strike down Louisiana abortion restrictions, but Chief Justice Roberts pointedly declined to join Justice Stephen Breyer’s opinion repudiating the rules. Instead the chief justice made clear in concurrence that he was only adhering to a four-year-old precedent, from which he had dissented and with which he still professes to disagree.
A charitable observer would say that Chief Justice Roberts is concerned about the court’s legitimacy and independence—that he wishes above all to avoid the perception that it responds to political pressure. An uncharitable one would say that in pursuit of that objective, he is creating not only the appearance but the reality of a political court. Either way, with a Republican-appointed majority of associate justices, the chief justice has lost this tie-breaking power.
Mr Tatanto’s article isn’t very long, but I have to summarize rather than quote the whole thing, to avoid plagiarism. He noted that the senior Justice in the majority in any case is the one who assigns the majority opinion, and the Chief Justice is senior even to the Associate Justices who may have been on the Court longer than him. He assigned to himself the majority opinion in National Federation of Independent Business v. Sebelius, and wrote an opinion that the far more liberal Justices would never have written themselves, but went along with to preserve ObysmalCare.
But if the Chief Justice sides with the liberals, and winds up in the minority of a 5 to 4 case, the senior Justice in the majority would be Clarence Thomas . . . and Justice Thomas is by no means a shrinking violet.
Justice Thomas is something of an anti-Roberts. His lone concurrences and dissents are usually not incremental but adventurous, urging colleagues to break new legal ground or rethink old precedents. In June Medical Services, he argued that Roe v. Wade was wrongly decided and should be overturned — a position no other sitting justice has endorsed since Antonin Scalia died in 2016.
The Chief Justice could well decide to vote with the conservative majority in some cases not because he is strongly conservative, but to soften the impact of a decision. But Mr Taranto himself pointed out the problem, when the Chief Justice “pointedly declined” to join what became the plurality opinion of Justice Breyer. The Chief Justice could, in theory, assign to himself the majority opinion in a controversial case, yet see an opinion by Justice Thomas gain more concurrences than his own. If a strongly conservative cabal of Associate Justices Thomas, Barrett and Samuel Alito emerged, possibly including Neil Gorsuch, Concurring in the decision opinions might be written which gained majority support, while the assigned majority opinion does not.
Mr Taranto concluded by saying that the Chief Justice could vote with conservatives more often, to soften opinions, but at least those opinions would not be liberal ones. But the time could come when his vote counts, but he simply gets shoved to the sideline on the opinions.
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