The current term of the Supreme Court has delivered a lot “huh???” moments, with the Court botching cases, dodging cases, and yielding a lot of decisions with very strange splits among the justices with little or no ideological clarity. But as Paul noted earlier, today we finally got two major rulings against leftist totems by the 6 – 3 split we’ve long been promised—on voting rights/safeguarding ballot integrity, and protecting donors from state harassment.
I think it is possible we may start to see more of this next term, because of one aspect of how the Court works that has drawn little notice. It involves Chief Justice John Roberts, who is rightly a source of frustration for his penchant for dodging tough cases, contradicting his own prior votes and language on similar cases, or ruling in the most minimalist way possible in order not to change any constitutional doctrines too dramatically.
When the Chief Justice votes with a majority in a case, the Chief assigns the majority opinion to one of the justices or writes it himself. But if the Chief is in the minority vote, then the senior-most justice in the majority assigns the Court’s opinion. The senior-most justice right now is . . . Clarence Thomas. And as everyone knows, he is the most thoroughgoing originalist on the Court, and would write decisions on key cases that will be much more sweeping than what Roberts (or most of the other conservatives on the Court apparently) will do. It would not matter if the other justices files separate concurrences departing from Thomas’s reasoning; it is the opinion of the justice writing for the Court that counts (just ask Lewis Powell in the Bakke case).
Question: Does Chief Justice Roberts want Thomas writing the Court’s majority opinion in a 5-4 case that strikes down Roe v. Wade, or affirmative action (the Harvard case, for example)? I doubt it. If the vote in a case looks to be coming 5-4 with Roberts otherwise siding with the liberals, I’ll bet he throws in with the other conservative justices just to keep control of what the Court’s majority opinion will say.
Which brings me back to the Harvard case that the Court punted on a few weeks ago by asking the Biden Justice Department to submit a brief with their position on the case, which will postpone the case by perhaps a year. Paul rightly called out the Court (and surely Roberts is behind this) for being cowardly about an issue it simply has to face sooner or later. I am absolutely certain there are four votes (the number necessary) to hear the Harvard case, so why did some of them agree to go along with a delay?
While I agree completely with Paul, let me suggest another way of looking at this delay that is not mutually exclusive to his opinion. By asking the Biden Justice Department to state its view of the case, it will force the Biden gang to go on the record sooner rather than later, and will expose the Biden Administration’s legal strategy in the arguments that will come before the Court. Will the Biden Justice Department embrace the “anti-racist” views currently fashionable in progressive circles that racial discrimination is necessary to right the nation’s past wrongs? Will the progressive “civil rights community” be happy if they don’t, and instead repair behind some narrow, minimalist reasoning about “narrowly tailored” remedies for “underrepresented minorities”? I have a hunch this brief is going to tie the civil rights division of the Biden Justice Department in knots over the summer. As frustrating as this delay is, it may turn out to be a clever move.
In the meantime, to the extent that the old line about how the Supreme Court follows the election returns is true at all (doubtful actually), what if there is a red wave at the next election that is attributable in part to voter backlash against CRT and the rest of the progressive agenda Biden and the Democrats are unleashing on us? I have a hunch that Roberts, thinking politically as he shouldn’t, may have persuaded perhaps the two newest justices (Barrett and Kavanaugh) to postpone hearing the Harvard case in hopes things will calm down. They are already going to hear the case that might reverse Roe v. Wade next term, and I can see Roberts saying “One hot-button case per term, please.” And I can easily see—in fact I predict—there will be riots if the Court strikes down Roe and affirmative action in college admissions.