Washington Merry-Go-Round

IMMEDIATE RELEASE 12 July 2024
WASHINGTON MERRY-GO-ROUND
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
              Amy Coney Barrett and the power of independence
By Douglas Cohn and Eleanor Clift         
 
WASHINGTON — The power of judicial independence is reappearing. The most junior member of the Supreme Court, Justice Amy Coney Barrett, is emerging as the most independent-minded of the three conservative Trump appointees. She is no Sandra Day O’Connor, at least not yet, but she is following the late O’Connor’s playbook in her willingness to occasionally work with the other side, namely the three liberal justices on the Court, and to embrace gender solidarity.
Justice Barrett is the only woman among the Court’s six conservative jurists while all three justices appointed by Democrats are women. When President Reagan nominated O’Connor, she was the first and only woman on the Court until Ruth Bader Ginsberg, chosen by President Clinton a decade later.
O’Connor’s independent streak made her a force to be reckoned with on a closely divided 5 to 4 Court where her vote made the difference. Both sides would court her, and she used her power to shape compromises that would accommodate the vast middle of public opinion on contentious issues like abortion and affirmative action.
She is credited with saving Roe when in 1992 she developed the “undue burden” criteria to put a brake on how far the law could go in preventing women from seeking an abortion.
Justice Barrett’s shift to the center is minimal by comparison. Even so, conservative commentators have taken notice, warning that the 52-year-old junior justice with decades left to serve is in danger of “flipping.”
Her apostasy surfaced in the Court’s most recent term when she dissented in a case that limits the law’s ability to charge hundreds of 1/6 riot defendants, including former President Trump. She also disagreed with part of the Court’s historic ruling giving presidents broad immunity for official acts.
In addition to these shifts away from the conservative majority, she has also challenged Clarence Thomas, the longest serving justice on the Court, for his “originalist” views when it comes to gun safety and regulation. Thomas opposes any restraint on gun ownership based on a strict interpretation of the Second Amendment that the late Justice Scalia enshrined into law.
Any movement to the left by Barrett does not matter as much in a 6 to 3 conservative Court as it would if the Court were more evenly divided, say 5 to 4, which is how O’Connor rose to such prominence. In her prime, it was the “O’Connor Court,” not the Rehnquist Court, although William Rehnquist served as chief justice from 1986 to 2005.
The next president is likely to have two vacancies to fill on the Court. That is the historic average for presidents, though Trump was able to fill three thanks to some ruthless and questionable maneuvering by Senate leader Mitch McConnell, R-Ky., who refused to allow a vote on President Obama’s nominee. Democrat Jimmy Carter did not have the opportunity to fill a single slot during his term as president.
The nature of the Court, depending on which party is in the White House, will be a major source of contention in the looming fight for the presidency. If Republicans are in power, they could cement conservative control for even more decades than they already have. Justices Thomas and Alito are the oldest justices on the Court and could retire confident that their ideology will be sustained.
If Democrats continue to hold the White House, a Democratic president could potentially shift the ideological balance back to a more favorable equilibrium. As Democrats weigh a fresh round of polls that underscore President Biden’s shaky position as the party’s nominee, the potential shift to another candidate who can better prosecute the case against Trump remains a possibility.
Meanwhile, eyes are on Barrett. In the tradition of O’Connor, will the current Supreme Court come to be known as the Amy Coney Barrett Court?
 
          See Eleanor Clift’s latest book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
          Twitter:  @douglas_cohn
          © 2024 U.S. News Syndicate, Inc.
          Distributed by U.S. News Syndicate, Inc.
END WASHINGTON MERRY-GO-ROUND