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Friday, November 27, 2020

Reshuffling the Court? (Updated)

Josh Blackman offers an interesting proposal/prediction/speculation: Chief Justice Roberts should retire, allowing soon-to-be-President Biden to elevate Justice Kagan to chief and to fill a seat on the Court. Josh originated this proposal in September as the new way to save nine, when polls suggested a Biden presidency and Democratic Senate that would expand the Court. While Court-expansion is off the table, Josh renews the speculation in light of the Court's new shape and the Chief's role, as revealed in this week's decision enjoining New York gathering regulations, in which he dissented for himself. With the appointment of Justice Barrett, Roberts no longer is the median Justice and may be in the minority more often. At the same time, Justices Breyer, Sotomayor, and Kagan have less incentive to join his opinions, because they cannot produce a majority. The result is a Chief Justice consistently voting alone.

In December 2016, I wrote that Roberts won and Kagan lost the Merrick Garland debacle. Roberts avoided being a Chief Justice consistently in the minority thereby retaining the power to assign and cultivate majorities, while Kagan lost the opportunity to be the Brennan-esque intellectual heart of a liberal majority. Josh argues that this moment passed with Trump's appointment of three solid conserbatives. This proposal would somewhat reverse what I described--Roberts leaves before his power wanes, while Kagan gets a promotion. Of course, Kagan would find herself where Roberts would have been had Garland been confirmed--a Chief Justice regularly in the minority (unless she proves even better than advertised at bringing the Court together in the middle). And the real winner of the exchange would be Justice Thomas, who regularly becomes senior Associate Justice in the majority with the power to assign opinions.

In fairness, I believe it is safe to say that Josh is no fan of the Chief and would shed no tears if he left the Court while leaving a secure, and young, conservative majority.

Update: One point I forgot: If this were to happen, it would give Biden three appointments in one term, as I expect Breyer to retire by spring 2022.

Posted by Howard Wasserman on November 27, 2020 at 04:00 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink


"cue from Democrats and be far less deferential in approving justices"

Minus the context of each case. For instance, toss in a median Federalist Society person (especially a woman), and I think the second seat would have had some Democratic support. A few even voted for Gorsuch right after the Garland block, where things were still raw.

Anyway, with the chance of court expansion unlikely for a while even if the Dems managed to win in January, Roberts has less reason to retire now. He might be in the minority now & then, but he will have power as the assigning justice in the majority & having a vote to negotiate as long as he is on the Court. He respects the prestige of the Court and one figures he respects his own abilities to protect it.

If he gives up his seat, he has to trust that to Kagan and might even have a small worry that one of the justices over 70 will have health issues and conservatives could lose the majority. And, if a Breyer type justice fills Roberts' slot, you will have a few more cases where the conservatives LOSE because Gorsuch or one of the others join in some libertarian or some such way. Barrett is also a wild card there since she is new.

Posted by: Joe | Nov 29, 2020 6:02:50 PM

I think three years ago Kagan might have gotten broader support, but I don't think that would happen now. Kagan had no judicial record when she was originally nominated. Also, the last time a sitting associate justice was nominated for chief was pre-Bork. I imagine that Republicans would be itching to dissect her opinions from all the 5-4 cases and paint her as a radical. I would not necessarily be opposed to the outcome, but I think Biden would be foolish to try this.

I am assuming Republicans will have a 51-49 majority at least until 2022. Since anyone Biden would appoint to replace Roberts would likely shift the court left, I think the only way that the appointee gets through the Senate is if he picks someone like Garland who is older. Similarly for Breyer--I am not sure why he would retire before fall 2022, since any replacement would likely need to be to the right of him in order to get approved (this is the same reasoning that Ginsburg didn't retire in the last years of Obama's presidency).

Posted by: TJM | Nov 29, 2020 3:26:01 PM

Good point about the numbers. I think Josh’s thought is that Kagan would get wide support. And garland is too old at this point.

Posted by: Professor Howard M. Wasserman | Nov 29, 2020 11:39:51 AM

Good point about the numbers. I think Josh’s thought is that Kagan would get wide support. And garland is too old at this point.

Posted by: Professor Howard M. Wasserman | Nov 29, 2020 11:39:50 AM

Not sure I calculate the same way...how would this give Biden three appointments? I realize that Biden would appoint Kagan to become chief, and then would need to appoint a replacement associate justice to fill her vacated seat, but that is only an appointment for someone already on the court. Am I missing something?

Also, I think that going forward Republicans will take their cue from Democrats and be far less deferential in approving justices. It doesn't seem like Biden would want to expose Kagan to another round of scrutiny, particularly by giving Republican senators a chance to grill her over her opinions while on SCOTUS. It seems like he would have an easier shot of replacing Roberts with a lower court judge--maybe Garland?

Posted by: TJM | Nov 29, 2020 7:20:08 AM

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