We May Get a Conservative Chief Justice

WSJ Op-Ed ^ | James Taranto

[ameribbean expat]

The chief justice is an especially potent swing voter, because he also has the power to assign authorship of the majority opinion, including to himself. That can help shape a decision’s scope and direction—usually, in Chief Justice Roberts’s case, by making it more tentative.

If the chief justice is in dissent, however, the assignment power falls to the most senior associate justice in the majority. Clarence Thomas is now the most senior justice, so he will assign authorship any time he is in the majority and Chief Justice Roberts dissents.

Justice Thomas is something of an anti-Roberts. His lone concurrences and dissents are usually not incremental but adventurous, urging colleagues to break new legal ground or rethink old precedents. In June Medical Services, he argued that Roe v. Wade was wrongly decided and should be overturned—a position no other sitting justice has endorsed since Antonin Scalia died in 2016.

[Impy]

For example, let’s assume that Trump is reelected and Roberts goes camping at Isle Royale, Michigan next Fourth of July and is eaten by wolves. (Unlike Gerald Ford, Roberts likely would not be delicious.)

This scenario appeals to me! 😂😂🤣🤣

[lepton]

In relation to elections for president, the Safe Harbor clause essentially says that as long as states certify the electors by a certain date (usually about a week prior to the Electoral College voting) the the state’s electoral votes are safe from being challenged is Congress.

---

There’s another part of it. As long as the state certifies the electors by that certain date - under rules existing prior to the election.

[lepton]

I’m not talking about the House acting on any matter.

Seems to me the PA Supremes changed the existing rules

---

The assumption the SCOTUS makes is that the states intend to take advantage of the safe harbor rule, under which the House respects the certification of electors. In order to qualify, the State must have both come up with a slate of electors by a certain date, and they must have done so under the state laws that existed prior to the election.

So, the State Courts changing the laws once the election has begun violated that.

[arrow107]

I applaud your stand and agree with your sentiment. Woman are different creatures than men with strengths and weaknesses that can compliment our strengths and weaknesses. When it comes to the “heat in the kitchen” females would seem to be at a disadvantage. There are strong examples on either side of the argument, but I basically agree. As for ACB, I think she will be strong and will hope for the best.

[trebb]

Don’t be the dog that keeps eating his own vomit...

[Jim W N]

Thank you. There certainly is heat in the FR kitchen.

The issue here isn’t even whether I’m right or wrong about ACB (hope for the best) or the Women’s Movement (I know I’m right and not one substantive challenge to what I have said - only Leftist-type personal smears).

The issue here is the ability to discuss and debate differing views in the forum of ideas which is what FR and the Parotitic Right is supposed to be about. The free expression of ideas in good faith and free inquiry into the merits and flaws. Here, I might as well have been on a Leftist site. Sad that the Right here has shown itself to be closer to the Left than anyone of us would like to see.

Thanks again and keep up the good fight of faith and freedom.

[Jim W N]

What vomit trebb? What have I said that isn’t true? Name just one thing.

For all the flame throwing, there was not one substantive challenge to what I have said - only Leftist-type personal smears. You (again) have no clue what you’re talking about.

[OKSooner]

:)

[trebb]

Aren’t you the guy who tried to use the Bible to make the same point a while back?
If not, I will apologize.
If it was you, I stand by my comment.

[spacejunkie2001]

Sandra Day O’Connor voted to uphold Roe v. Wade despite personal opinions on abortion
Michael Kiefer
The Republic | azcentral.com

Retired U.S. Supreme Court Justice Sandra Day O’Connor addresses a meeting of Pennsylvania judges and lawyers in Harrisburg, Pa., Wednesday, Sept., 19, 2007.
When Sandra Day O’Connor sat in her confirmation hearings before the Senate Judiciary Committee in 1981, the national debate turned to a woman’s right to choose an abortion.

Roe v. Wade, the 1973 landmark case that legalized abortion, had been the law of the land for eight years. But it was under constant attack from the religious right — then as now. And because O’Connor was a woman who had presided over the Arizona State Senate when it decriminalized abortion, she was suspect, even though she declared her personal abhorrence for abortion.

But O’Connor — who announced Oct. 23 that she has been diagnosed with dementia — had respect for opinions issued by earlier Supreme Court panels and felt there needed to be good reason to overturn them.

“Too frequent overturning of precedent, she felt, undercut the court,” said Carl Tobias, a law professor at the University of Richmond.

Some justices wanted to overturn Roe v. Wade, notably Antonin Scalia, who would bring it up in discussion of other decisions, such as Lawrence v. Texas, which overturned state sodomy laws — that is, laws that targeted gay sex.

[DouglasKC]

So if I understand this right IF the Chief Justice needs to be replaced then a NEW Chief Justice has to be nominated and confirmed? Or can an associate judge become the chief justice?

[Impy]

I worry any woman might be “soft-hearted” on certain cases.

But on Roe? Pro-life women are more pro-life than any pro-life man could ever be. Roberts and Gorsuch are much more likely to vote to uphold Roe.

[Jim W N]

OK well I hope you’re right. If so, what would the Court count be?

Overturn Roe v. Wade:

Against: Roberts, Gorsuch, Breyer, the two Obama Justices against

For: Amy Coney Barrett, Kavanaugh, Alito, Thomas

That would be 4 for and 5 against. We lose. Gotta have another Lefty leave the Court. Maybe Breyer. Soon.

[Impy]

You never know for sure but I don’t see Roberts voting to overturn

Gorsuch has a “maverick” streak and some pro-fag tendencies so you worry about him. That would be 5-4 to keep. He seems to be the key guy for this.

Billyboy worries about Kav on the issue as well. I’m not there.

But Barrett, not at all, not on abortion.

Strong chance of allowing more restrictions even if no full repeal, imo.

[Jim W N]

I think Trump needs to look harder and more critically at his choices. I really wish he had better advisors. I think is doesn’t have to be such a crap shoot.

[BillyBoy]

Based on what we knew about Roberts in 2005, it should have been crystal clear he'd vote to overturn Roe. His judicial views on abortion were unknown, but the guy was a pretty solid Rehnquist clerk, devout church-going Roman Catholic (sure, there are some weekly mass attending white Catholics who support abortion, but its pretty rare) and his wife was a card-carrying member of a pro-life organization, for crying out loud! John Roberts 2020 is significantly to the LEFT of John Roberts 2005 (and sadly, seems to be moving increasingly leftward every day), so that's why I say "iffy" at this point. As nickcarraway notes, Roberts tends to go traitor on some BIG "landmark" cases where the liberals have the votes to establish some NEW socialist "precedent" (Roberts wants to be on the "winning" side and assign or write the opinion himself... I think its vanity), but he still votes mostly conservative when the outcome of the case won't change things. He is nowhere near as "liberal" as many FReepers seem to see him as, and he is not on the level of Souter or Stevens. So I could see Roberts staying in the minority for a decision affirming Roe still stands. He did so in a similar case 5-4 where Gorsuch joined the commie side.

Gorsuch's background was the opposite. He is simply NOT a social conservative. Period. His insane SJW feminazi pastor has rotted that guy's brain, much the same way that Obama's race-based social justice politics were influenced by Jermimah "God Damn America" Wright's beliefs, no matter how much Obama argued otherwise. Gorsuch won't vote to overturn Roe because he AGREES with basic gist of it. Again, he is a Sandra Day O'Connor type justice and WILL vote to overturn some bad left-wing precedents, and will probably vote the way we want 70-80% of the time. But you can forget about Gorsuch being on "our side" on issues like abortion or "rights" for homos & transgender freaks.

Kavanaugh... certainly not in the same ballpark as Gorsuch on social issues. He's voted better than Gorsuch OR Roberts on a number of notable cases. But I am confident he is a "no" vote on overturning Roe for an entirely different reason: he is a "Don't rock the boat" type status quo conservative, who said over and over again during his confirmation hearings that is EXTREMELY hesitant to overturn ANY Supreme Court decision that has been entrenched in society for decades, even if he personally dislikes it and wouldn't have established that "right" in the first place. He flat out SAID he wouldn't overturn Roe. The RINO from Maine believed him and voted to confirm him for that exact reason. Kav probably thinks Roe was a bad precedent but overturning it at THIS time would damage the judiciary's credibility and reduce them to flip-flopping for purely partisan reasons and would result in chaos in American culture and law if it were suddenly and abruptly struck down completely, and blah blah blah. He'd probably write some useless "concurrence' saying Roe is bad law but he's not overturning it because it needs to be "corrected" by lawmakers, and blah blah blah... some lofty puff piece that will accomplish jack squat for our side, but it will SOUND like a very scholarly "conservative" argument.

[nickcarraway]

I think Gorsuch and Kavanaugh will end up about where Kennedy was, maybe a little to the left as time goes on. But I doubt we'll ever actually have a new Roe case, so I'm not sure we'll see how they actually vote on that.

If it were today, I think Alito and Thomas would vote to overturn. Probably Barrett, but you really can't be sure yet. And maybe Roberts.

[BillyBoy]

>> I think Trump needs to look harder and more critically at his choices. I really wish he had better advisors. I think is doesn’t have to be such a crap shoot. <<

I have been saying that since day one. I WISH I had been wrong in 2016 when I feared Trump would give us crappy SCOTUS judges. IF Trump had replaced Scalia with an outstanding across-the-board constitutional conservative, I would have been the FIRST to applaud him and apologize for doubting him. But that didn't happen. Trump's SCOTUS pick moved the court to the LEFT at that time (only now with Barrett's confirmation is it moving back right again, but overall I'd say it's now a wash and we're back to square one)

Too many MAGA FReepers drank the kool-aid that ANY judge on Trump's damn "list" would magically be awesome, and that Gorsuch was guranteed to be Scalia mach 2 simply because Trump said so.

I haven't researched his lower court nominees, but if they are anywhere as "good" as his SCOTUS picks and White House advisors, I seriously doubt we have "cemented a conservative majority for decades" simply by filling the federal courts with Trump judges.

Trump promised to give us pro-life judges in the Scalia mold. Only 1 out of 3 of his SCOTUS judges actually met that criteria. Yet we have FReepers everywhere falling all over themselves with the "God bless PDJT for KEEPING his campaign pledge to give us outstanding originalists on the Supreme Court!!!" Sorry, if Trump "accomplished" that and "cemented a conservative majority" from that, then so did President Eisenhower. His SCOTUS track record was about as "good" as Trump's.... he generally picked solid conservatives about 1/3rd of the time.

>> If it were today, I think Alito and Thomas would vote to overturn. Probably Barrett, but you really can't be sure yet. And maybe Roberts.

Yep, I am again in total agreement with nickcarraway's take. 100% certain Alito and Thomas would overturn. Barrett almost certainly will as well, but I can't say 100% there only because she hasn't served one day as a SC judge. Roberts? Iffy. Kav and Gorsuch will vote with the commies, for differing reasons. Before Ginsburg croaking, I would have predicted 6-3 to uphold Roe. Now possibly 5-4 to keep Roe if we're lucky.

The most worrying thing is IF Roberts, Kavauagh, or Gorsuch move further left than where they currently are, as "backlash" against Barrett jerking the court rightward.

[nickcarraway]

I think what you say is pretty accurate.

[Jim W N]

All that adds up to what I said about Trump doing more to vet these guys ahead of time. There are ways and not all that difficult - but Trump doesn’t have a law background so it might be harder for him but I still think he could do it.

Trump tends to take his business trust and loyalty and transfer it into government. Can’t do that. Government is cut-throat and you’ve gotta be unflinching in finding about about people’s character.

Also as I said, it would help if he had better advisors.