IT’S NOW THE BARRETT COURT
It’s common to identify eras of Supreme Court history by reference to the name of the presiding chief justice, but the Court’s dynamics can change with the appointment of each new member. With the confirmation of Amy Coney Barrett, we may now be entering the era of the Barrett Court.
Her arrival is likely to have the most profound effect on the nation’s highest court since simultaneous appointments of William Rehnquist and Lewis Powell in the 1970s and the replacement of Thurgood Marshall by Clarence Thomas in the early 1990s.
The most obvious consequence will be the presence of six justices appointed by Republicans and only three appointed by Democrats, where the Republicans are all more conservative than the Democrats.
To win a case where the Court is split on ideological lines, the more liberal justices will have to pick off not one but two from the conservative wing—a daunting feat.
Some members of the Court don’t like it to be split 5-4, because such a close tally makes the justices look fractious. A 6-3 division may free up the conservative justices to vote more often for certiorari—the decision by which the Court agrees to hear a case— because they will face less risk of losing on the merits and less chance of a narrow win.
Moreover, if the conservatives can lose one of their number and retain a majority, it may embolden some of them to write more conservative opinions for the Court, because the justice least in concord will just write a concurrence and the more conservative opinion will still constitute the holding.
Political scientists refer to the justices as leaning more liberal or conservative. But for jurisprudence, the reasoning of a Supreme Court opinion is more important than the result, particularly because it helps create our legal culture.
Barrett’s appointment will increase the number of originalists on the Court to at least three, including Justices Clarence Thomas and Neil Gorsuch. While Brett Kavanaugh said that he was an originalist at his hearing, it is not yet clear whether he will be a thoroughgoing originalist or will instead join John Roberts and Samuel Alito as judges with some originalist sympathies but without full commitment.
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.
The relation of precedent to originalism remains unsettled. Even before Barrett joined the Court, justices from all wings of the Court were wrestling with how to make the doctrine of stare decisis—the principle of judicial precedent—more into a rule of law that constrains judicial action rather than a result-oriented balancing test that simply reflects judicial preferences about a case.
That ferment will continue, but originalists will try to mold stare decisis into a more rule-like doctrine that will also help maintain the Constitution’s original meaning.
Since Kavanaugh’s confirmation, Chief Justice John Roberts has been the most powerful justice because he was not only the chief but also the median justice in terms of ideology. As a result, the Court tended to swing the way he voted. When in the majority, he deployed his power to assign the opinion to shape the future trajectory of the law.
But on the Barrett Court, Roberts will no longer be the median justice.
It is not yet clear whether this role will be most often filled by Gorsuch, Kavanaugh, or Barrett herself. In any event, Roberts’s vote is not as likely to be outcome-determinative.
Worse still, from his perspective, if he 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.
As a result, it is quite possible that Roberts will vote more often strategically to the right in order to assign the opinion. He may have voted strategically before, to distribute victories more evenly among the conservatives and liberals, to maintain political support for the Court among the public.
But he may now decide that the best way to pursue that objective is to use the power of assignment to make sure that the opinions are as anodyne and narrow as possible.
Following the death of Ruth Bader Ginsburg, Justice Stephen Breyer is the most senior justice on the left. His is a jurisprudence of pragmatism—almost the opposite of originalism. We can expect him to assign himself dissents that will try to draw a jurisprudential contrast.
Sonia Sotomayor is likely to be isolated without Ginsburg. She is farther to the left than either Breyer or Kagan. Her most radical dissents, like that which suggested that Michigan voters were powerless to eliminate racial preferences, elicited only Ginsburg’s vote.
In the increasingly unlikely event of a unified Democrat government in January (winning House, Senate, and White House), its intent on packing the Court might temper some of these changes, because all the members of the Court, not only Roberts, will be concerned to prevent such damage to the Supreme Court as an institution.
In my view, however, this threat is unlikely to have much effect on the wide range of cases now decided below the political radar. And court-packing itself is unlikely to succeed unless the Democrats enjoy a large Senate majority—the idea is very unpopular with the American people and even with many establishment elites.
A President Biden would be most likely to influence the Court by replacing Breyer, an octogenarian probably ready to step down. We will then still have the same Republican-Conservative 6-3 majority — and will retain the basic dynamics of the Barrett Court.
John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University.