The Supreme Court now

What is the shape of the Supreme Court now that Amy Coney Barrett is a member? Three articles consider the question.

Jason Richwine argues that the new court is best viewed, not as one in which Justice Barrett has replaced Justice Ginsburg, but as one in which Justice Kavanaugh has replaced Chief Justice Roberts as the key vote. I agree.

Assuming no court packing, the question then becomes how much difference there likely will be between the way Kavanaugh votes and the way Roberts does.

So far, Kavanaugh has been somewhat to the right of Roberts. As Richwine states:

During his two years on the bench, Kavanaugh has been a cautious conservative. He is sometimes unwilling to issue decisions that are as far-reaching as fellow conservatives Gorsuch, Alito, and Thomas would prefer. At the same time, Kavanaugh has separated himself from Roberts by sticking with conservatives on big cases in which the chief “defects” to the liberals.

This subjective assessment finds quantitative support in Martin-Quinn scores. Based on those scores, the Court’s conservatives can be ordered from least conservative to most: Roberts, Kavanaugh, Gorsuch, Alito, Thomas.

Justice Barrett will likely slot in somewhere close to Justices Alito and Thomas, but what matters most now is the distance between Roberts and Kavanaugh.

The wild card, I think, is the threat of court packing. Will that prospect cause the cautious Kavanaugh to slide towards Roberts in order to avoid rulings that might cause a restructuring of the Court?

James Taranto’s take on the Supreme Court is that Justice Thomas may become its de facto chief justice. That’s because Chief Justice Roberts may now find himself dissenting in many big cases, instead of casting the vote that creates the majority.

When the Chief Justice is in the dissent, the most senior Justice in the majority gets to assign the writing of the opinion. In the new Court, Justice Thomas may frequently be that Justice.

Taranto speculates, however, that in some cases, Roberts might join the majority in order to maintain control over the opinion writing.

Yuval Levin sees Justice Barrett’s addition as affecting “the struggle for the soul of the conservative legal movement.” He defines the conservative legal divide this way:

Th[e] distinction is sometimes crudely but usefully described as separating more conservative from more libertarian approaches, where the former tend to a more communitarian constitutionalism (in which Congress in particular speaks for the nation in law) while the latter tend toward a more individualist constitutionalism (in which every citizen is more directly sovereign and the courts must protect each person’s natural rights from incursion even by Congress).

The differences between them aren’t absolute, of course. Both sides accept the legitimacy of legislation and the necessity of protecting core individual rights. But they involve important disagreements over emphasis and application. . . .

The more libertarian approach, best articulated by Georgetown law professor Randy Barnett over the years, is newer, but has tended to be more dominant among the rising generation of conservative lawyers and scholars, and to leave them friendly to a kind of conservative judicial activism (or engagement). The more conservative approach, perhaps best articulated by the late Justice Antonin Scalia, points toward a somewhat more restrained role for the judge, more deference to legislative action, and more regard (though still with significant limits) for the Court’s precedents.

Yuval has much more to say about this divide and I recommend reading his entire analysis. For present purposes, though, the key question is where Justice Barrett stands in terms of the divide.

The answer, according to Yuval, is that she’s on the conservative, not the libertarian, side. To support this view, he cites a 2017 article by Amy Barrett in the University of Minnesota Law School’s journal Constitutional Commentary — a review of Randy Barnett’s book Our Republican Constitution. In her review, she found Professor Barnett too quick to dismiss concerns over judicial activism.

Justice Scalia was Barrett’s hero and mentor, so it isn’t surprising that she probably falls on his conservative, rather than the libertarian, side of the legal divide.

Yuval is on that side too. He writes:

[T]he emphasis on [judicial] restraint will be a vital counterweight against the inevitable rise of right-wing judicial supremacy in the coming years. That rise is well underway, but is sure to be accelerated if the right loses its hold on the elected branches for a time even as it exercises more power in the judiciary than it has in many decades.

In this period, it will be vital to remember the true and powerful arguments that conservatives have made against judicial supremacy over the past half century, and to articulate a vision of the Constitution rooted in a genuine republicanism, rather than seeking refuge in a technocratic elite of our own. The judicial state is no more a way forward than the administrative state. The way forward is laid out by the structure and character of our constitutional system, as originally laid out and intended.