Oct 13, 2020 - Politics & Policy

How Amy Coney Barrett would change the way the Supreme Court works

Illustration of change icon in scales of the justice

Illustration: Eniola Odetunde/Axios

Appointing three Supreme Court justices will likely be President Trump’s most important achievement, and Judge Amy Coney Barrett may well be the most important of the three.

Why it matters: Barrett would transform the court’s internal politics, handicapping Chief Justice John Roberts and establishing a new center of gravity on the right. Her presence would force a whole new set of strategic calculations among the justices — and those calculations will shape the law of the land for a generation.

The big picture: When you hear that Barrett would usher in a more conservative court, that doesn’t necessarily mean she’ll be writing deeply conservative rulings on abortion or health care or any other hot-button issue. In fact, that’s unlikely to happen for a long time.

  • If Barrett is confirmed, she would be the most junior justice, and the most junior justice rarely gets to write any blockbuster rulings.
  • But behind the scenes, her confirmation would shake up the balance of power on the court dramatically.

Where it stands: Before Ruth Bader Ginsburg’s death, Roberts was the court’s ideological center, and firmly in control of the court.

  • That meant conservatives usually won, but those wins were often tempered by Roberts' views about the court’s role in the political process and how best to maintain the public’s trust.
  • Roberts sometimes sides with the court’s liberal wing not necessarily because he is liberal, but as a way to control how the court moves. He uses his power to ensure that it’s his hand on the wheel.

Roberts is about to lose some of that power. He’ll still be the chief justice, of course, but if Barrett is confirmed, the rest of the conservative bloc will be able to force his hand —and some of his most effective tactics to steer the pace and tenor of the court will become useless.

  • Siding with the liberals as a way to slow down his conservative colleagues won’t work any more. Once the court has a 6-3 majority, one defection won’t swing the outcome.
  • So, even in cases where Roberts fears his conservative colleagues are moving too fast or too aggressively, his only way to constrain them will be to vote with them, then write the ruling himself and try to keep it narrow.
  • But it can’t be too narrow. If the other five can’t live with what Roberts has written, they can always break off and write their own, and that would become the majority opinion.

How it works: When the Supreme Court upheld the Affordable Care Act in 2012, Roberts reportedly wanted to strike down the law’s individual mandate, while leaving the rest intact. But the rest of the conservative justices wouldn’t go for that — they wanted to strike the whole thing.

  • Then, Roberts had the power to defect to the liberals and uphold the entire law. If he were on a similar island within this new conservative majority, however, the whole ACA would be toast.
  • Earlier this year, the rest of the court’s conservatives voted to overturn a recent precedent and uphold a set of abortion restrictions the court had previously struck down. Roberts, again, sided with the liberals to stop that from happening — a ruling that only served to slow conservatives’ roll, not to establish any new liberal precedent.
  • Experts said that was likely a strategic decision borne out of Roberts’ views of how to protect the court’s public standing. If that case came before the court after Barrett’s confirmation, though, Roberts likely would have had to get on board the more conservative train to have any chance of slowing it down.

Trump’s other nominees haven’t had the same impact.

  • Justice Neil Gorsuch replaced the late Antonin Scalia, which did not change the court’s ideological balance. When Justice Brett Kavanaugh replaced Anthony Kennedy, Roberts’ control over the court increased, because he became the only potential swing vote.
  • But because Barrett would be replacing a staunch liberal, she’ll pull the ideological balance of the court to Roberts’ right and forge a conservative majority that can live without him.
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