Thoughts on the Balance of the Supreme Court.

It’s important to note that most decisions by the court will probably still be unanimous or joined by liberals and conservatives alike. The contentious cases are typically only a handful or fewer per annum. But those cases are the ones with the biggest risks for all concerned.

Right now the court looks not so much 3-6 (because of the left-right axis of the court, its balanced will be listed left-to-right), but 3-1-5. At the moment Chief Justice Roberts looks more poised to be a moderate that is not fully aligned with the rest of the conservatives.

If the five right-fielders stick together, it will be their court for good or ill. That’s math. But on some cases, some issues, at least one of the five won’t want the same result. Those cases will be the ones that shape the court and the politics of the judiciary, not the ones where all five decide to plow under the crops of American law.

It is those cases where Justice Gorsuch or Justice Kavanaugh split that will matter most, in two ways. First, whether the chief justice plugs the hole in those instances, and if not, how much leverage the liberals have in shaping the opinion of their occasional majority.

The dynamics of having Roberts and one of the five join the liberals are unpredictable in terms of leverage. Roberts might be able to seek moderate opinions, depending on how greedy the five get in their majority cases. But the moderate-left members of the court, with fewer opportunities to balance the scales of justice, may actually have more leverage in those rare cases.

But the court may not prove to be 3-1-5. It could be 3-6, but that seems less likely as Roberts isn’t just trying to be a moderating voice, but is largely just that. More likely than 3-6, but perhaps less than 3-1-5 are the 3-2-4 or even 3-1-2-3 or 3-1-3-2 courts. These represent a clearer spectrum that might develop, as the prism of cases separates out the conservatives into their truer colors.

Already we have seen the likes of Justice Alito and Justice Thomas being boldly sectional in their rhetoric, and it seems likely that at least one more will slip into their bed, but perhaps not two or three. The power position would be to join Roberts in the middle, but it’s not clear that any of the five are candidates for that.

So, in terms of ranking, the likeliest to least seem to be:

  1. 3-1-5
  2. 3-1-2-3
  3. 3-2-4
  4. 3-1-3-2
  5. 3-6

The fourth possibility is interesting, for what it represents in terms of outcomes. In it, the three judges seated during this administration would be a bloc unto themselves, not agreeing to go as far as the Hun bloc in trying to tattoo Lady Liberty with a Federalist Society tramp-stamp, but trying to find some right-of-Roberts ground. They would need to either pull in Roberts and a Hun or else pull in both Huns or Roberts and a liberal.

But it will take at least a few terms to see where things lead. In the meantime, the inauguration is in seven-ish weeks.