by Rod D. Martin
October 29, 2020

Some of you are a bit pessimistic about John Roberts (and also Neil Gorsuch). You’re not wrong. But the game just changed.

Gorsuch has been near-100% solid…except for the absolutely Dred Scott/Roe v. Wade-level absurdity that is his ruling on Bostock. He’ll need a 100% rest-of-his-record to even peek out of the hole he dug on that one.

Fortunately, that’s pretty likely. But still.

Roberts has become a pretty reliable disappointment, having become all-but the Anthony Kennedy of the early mid-21st Century. He too is with us most of the time (more than Kennedy). But on things that matter, all too often he’s inexplicably AWOL. One friend of mine in the U.S. Senate says it’s because he absolutely loathes Donald Trump. Some say it’s because there are too many pictures of him on Jeffrey Epstein’s island. More prosaically, he loves the faux-adoration of the Georgetown party set, all Democrats and RINOs, all deliberately courting him (pun intended). He’s vain. It shows.

But here’s the deal.

Amy Coney Barrett changes the calculus in a very big way.

First, as I said, both Roberts and Gorsuch are with us most of the time. The odds of both being against us at the same time are extremely low, Bostock notwithstanding. That puts Roberts in a minority when he tacks left nearly all the time. That means he’s no longer the “swing vote”, holding the world in his hand.

That’s just not so much fun. Judges hate being in a minority. They have to really want it. One gets the sense that Roberts particularly tends to flip on matters that will make him popular with certain people. There’s not a lot of point in flipping if it accomplishes nothing. Not unless you really believe.

The things on which Roberts has flipped don’t look like deep belief. They look like something between pandering and trying to be “the reasonable one”. But if he’s no longer capable of being the swing vote, that’s no longer an option.

It gets worse. As Chief Justice, Roberts gets to choose who writes the majority decision…but only if he’s in the majority. If he isn’t, that goes to the most senior justice who’s actually in the majority.

Guess who that is now? Clarence Thomas, the most conservative justice of all.

If Roberts wants to “moderate” a conservative majority, he now has to actually join that majority to be able to write the decision, and avoid that power going to Thomas.

Bottom line: some of you are concerned that ACB gives us at best a 5-4 majority, maybe a 4-5 minority. And occasionally that’s going to be true.

But because of the personalities involved and the way the Court works, actually, ACB likely brings Roberts into a 6-3, time after time after time.

And judges love being in that large a majority.

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One last thing. If Biden’s leftists succeed in expanding the Court to however many justices it takes for them to keep a permanent majority, not only are all these bets off, but America is off too. Our experiment in Constitutional government will be over.

However, if Trump wins re-election, there’s a pretty high probability that he’ll get to replace the 82-year-old Stephen Breyer too.

And that would be a 7-2 majority. The same kind of majority that gave us Roe v. Wade.

That would largely ruin the ability of Roberts or Gorsuch to upset the applecart. A Court dedicated to upholding the original intent of the Founders would be locked in for a generation. And thus might well end the Socialist revolution currently underway.

This is how you should pray. And vote.

— Supreme Court Justices: The Game Just Changed originally appeared as a Facebook post by Rod D. Martin.