The Patriot Post® · How ACB Can Make SCOTUS A-OK
Grassroots Patriots have experienced plenty of disappointment during the past decade with the Supreme Court under Chief Justice John Roberts. Whether it was his awful ruling to rescue ObamaCare, the Court’s effort to keep DACA alive, or the utter refusal to follow up on the landmark Heller and McDonald Second Amendment rulings, the Supreme Court has let down constitutional conservatives more often than not.
Of course, the role of the Supreme Court isn’t to hand policy victories to conservatives; rather, it’s to ensure that the executive and legislative branches are acting within the confines of the Constitution. Hence, sometimes, upholding the Constitution may require grassroots Patriots to stomach a ruling like the one the late Antonin Scalia issued striking down bans on flag burning. Flag burning, he reasoned, is a form of protected political speech. But some 5-4 cases haven’t been nearly so principled.
The nomination of Amy Coney Barrett to replace the late Ruth Bader Ginsburg, though, flips 5-4 cases like DACA despite the worst efforts of the chief justice, who’ll no longer be the “swing vote” on the Court. That vote now moves to the right of Roberts, arguably to Justice Neil Gorsuch — although the key to swinging him lies in textualism, not appeals to preferred policy positions.
This is a good thing, no doubt about it. But this shift in the balance of the Court, something Patriots have worked for over the course of decades, may also cause John Roberts to more often vote the way many hoped he would when he was appointed by President George W. Bush in 2005.
Why might that happen? The answer lies in the title Roberts holds. As chief justice of the United States, he’s the first in terms of precedence on the Supreme Court. When he’s in the majority on a given case, he decides who writes the opinion for the majority. This is the opinion cited as precedent in future cases, and it also guides the lower courts when they face similar cases. When the chief justice is in the minority, the assignment of the majority opinion is done by the senior associate justice who did vote with the majority.
Take, for instance, some of those Second Amendment cases that the Supreme Court has punted. Barrett’s presence means the Court might well take those cases now. In addition, she could be the fifth vote — without any help from Roberts — to knock down statutes such as a “discretionary” carry law, or one that requires “good cause” to get a concealed carry permit.
But Barrett’s presence could very well make what might be a “divisive” 5-4 ruling a more solid 6-3 ruling. This is because, if Roberts does join liberals Stephen Breyer, Sonia Sotomayor, and Elena Kagan, he doesn’t get to decide who writes the majority opinions on those Second Amendment cases. It would instead be Associate Justice Clarence Thomas making the call.
Now, given that Thomas has expressed his impatience with the Supreme Court punting on Second Amendment cases and raising significant issues, one can imagine that he may exercise his prerogative to write the majority opinion himself. Having read the dissents from denials of cert, we suspect that loyal Patriot Post readers have a sense about how such a ruling might go.
So would John Roberts. Thus, he might vote with the majority in order to exercise his prerogative as chief justice to assign the majority opinion to himself and thereby narrow its scope. But even then, this would have a positive effect. The expanded majority could deflect attacks from the likes of Rhode Island Senator Sheldon Whitehouse, who made threats to pack the Supreme Court over one Second Amendment case that it did hear.
Of course, a lot can change in the next few weeks. As of this writing, Joe Biden still refuses to give the American people a straight answer as to whether he would pack the Supreme Court. In that case, Judge Barrett’s confirmation could be a fleeting victory. However, if the Supreme Court stays at nine members, Justice Amy Coney Barrett will likely have a welcome influence on that body for decades to come.