More Retirements?

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October 12, 2020 6:42 p.m.

I don’t think TPM Reader PT’s prediction here is at all likely. John Roberts is a conservative ideologue and holds the pinnacle position in the world of jurisprudence. Why he’d surrender that plum as a relatively young man isn’t at all clear to me. Still, I found PT’s discussion of the different equities in play quite perceptive and interesting.

I’ve argued before that I think it’s at least plausible that John Roberts will retire during Biden’s first term. My argument is that Roberts appears to be the only one of the Court’s conservatives who cares at all about the legacy and perceived legitimacy of the Supreme Court, both of which were badly damaged by the way that Neil Gorsuch ascended to his seat. Of course, there were cross-pressures for him: he clearly cares about the conservative project of wielding power through an unelected Court that in practice can only rarely be overruled, he presumably likes being on the Court and being Chief Justice, and by Washington DC standards he is fairly young (mid-60’s).

Now, however, I think that the near-certain ascent of Barrett to fill Ginsburg’s seat will change the calculus and makes it more likely that he will retire.

First of all, that ascent will dramatically worsen the Court’s ongoing crisis of legitimacy. Second, his retirement will result not in a 5-4 split in favor of liberals but a return to a 5-4 split in favor of conservatives (and in particular 5 conservatives who have been more ideologically reliable than Kennedy or even Scalia had been). Indeed, in the absence of an expansion of the court (see below), it would practically guarantee conservative dominance of the Court for the foreseeable future: the oldest justice by far is Breyer, a liberal; the oldest conservative, Thomas, is only 72 and thus is pretty likely to be able to stay on the Court through the next 2 Presidential terms if need be, in hopes that a Republican is President when he retires.

Third, of course, is the fact that Barrett’s ascent is causing a backlash that threatens to destroy the project in its entirety. Establishment Democrats are talking seriously about expanding the Court so as to eliminate its dominance by conservatives. Other Democrats are proposing legislation that would combine a temporary expansion of the Court with an eventual 9-member court whose members were effectively forced from active duty after 18 years, legislation that eliminates the capacity of the Senate to simply refuse to act on a nominee, etc.

Under the circumstances, I can imagine that Roberts would decide to at least attempt to head off any of the aforementioned changes by, in effect, “giving” a seat and the Chief Justice spot to the liberals. Such an action might reduce the intensity of the backlash against Republican thefts of Court seats to a level where the natural timidity and status quo bias of Democrats (especially characters like Senators Manchin and Feinstein) would cut off the possibility of changes that would actually guarantee the ability of Democrats and the left to get support for their program from the courts. The conservatives would win fewer and maybe would win smaller, but they would still be ahead of where they would be if Joe Biden and Chuck Schumer got to add 4 new votes to the Supreme Court in 2021.

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