The Tyranny Of The Sixth Vote

At WaPo, Ruth Marcus calls it the “Rule of Six,” and argues that it’s the end of the world as we know it.

[Supreme Court associate Justice William] Brennan, master vote-counter and vote-cajoler, was right — but there is an important corollary to his famous Rule of Five, one powerfully at work in the current Supreme Court. That is the Rule of Six. A five-justice majority is inherently fragile. It necessitates compromise and discourages overreach. Five justices tend to proceed with baby steps.

A six-justice majority is a different animal. A six-justice majority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s “heir and a spare.” The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests.

This notion will no doubt come as a surprise to some, who were reliably informed that a five-justice conservative majority on the Supreme Court following the confirmations of Justices Gorsuch and Kavanagh meant the sky would fall any minute now. On the one hand, it didn’t. On the other hand, Justice Amy Coney Barrett was subsequently confirmed. Now it wasn’t just five, but six.

On the current court, each conservative justice enjoys the prospect of being able to corral four colleagues, if not all five, in support of his or her beliefs, point of view or pet projects, whether that is outlawing affirmative action, ending constitutional protection for abortion, exalting religious liberty over all other rights or restraining the power of government agencies.

A six-justice majority is emboldened rather than hesitant; so, too, are the conservative advocates who appear before it. Such a court doesn’t need to trim its sails, hedge its language, or abide by legal niceties if it seems more convenient to dispense with them.

Whether the six justices who, we’re told, comprise the “conservative wing” of the court will be “emboldened rather than hesitant” is unclear. As it’s turned out, the new justices aren’t quite as reliably awful as their detractors assume. Remember Gorsuch’s opinion in Bostock? To date, gay marriage remains intact, as does Chevron deference. It may end up that the right to an abortion is subject to restrictions rather than unfettered, but then Roe v. Wade didn’t provide an unfettered right to an abortion either, and it was groundbreaking.

Is it possible that this sixth “man” will be the undoing of all that progressives hold dear and conservatives abhor? It is, indeed. While pundits like Marcus, less inclined to indulge in outrage fantasies than the New York Times’ Linda Greenhouse, still assume too much of the “conservative” justice, whose views may vary by issue or whose adherence to jurisprudential issues like stare decisis may prevail over any sense that the prior decisions of the Supreme Court were wrongly decided. Will they? Beats me, although many others, like Marcus, do not share my inability to see into the future.

A conservative justice wary of providing a fifth vote for a controversial position can take comfort in the thought that now there are six; there is strength in that number. Meantime, a court with a six-justice majority is one in which the justices on the other side of the ideological spectrum are effectively consigned to a perpetual minority. They craft dissents that may serve as rebukes for the ages but do little to achieve change in the present. The most they can manage is damage control, and that only rarely.

That is the reality — exhilarating for conservatives, chilling for liberals — as the court, with a membership that has not been this conservative since the 1930s, embarks on what could be its most consequential term in decades.

Therein lies the problem, that so many are so certain of “the reality,” that if the Supreme Court is not “reimagined” so as to buck up the numbers of the “perpetual minority,” at least to the point where there is merely a “fragile majority” of five rather than an emboldened majority of six, the Court’s rulings are pre-ordained to adhere to conservative end of the “ideological spectrum.”

Marcus could be right, although there are strong institutional pressures militating against it from happening even if the six justices were all aligned on the issues otherwise. The Supreme Court, and Chief Justice Roberts more than anyone, appreciates that it is the least dangerous branch. Its legitimacy relies on the public’s acceptance of its rulings as fair and sound rather than political. If the Court goes wild, and enough of the public believes that it can no longer be trusted to fairly decide issues of law, then its decisions will only be as significant as the person with an army or the group holding the purse strings decides they will be.

And therein lies Marcus’ argument, that while Roberts may care about the institutional legitimacy of the Court, the other five will not, and don’t need to.

Now, Chief Justice John G. Roberts Jr., who occupies what passes for this court’s center, holds the reins but is no longer firmly in control of his horses. Some of his most conservative justices are champing at the bit. Sometimes he can curb them, but not always; sometimes he is delighted to head in the same direction. And if any five agree, they can go galloping off anywhere they choose. If Roberts isn’t with them, the court’s most conservative member, Justice Clarence Thomas, has the power to assign the majority opinion or write it himself.

Whether the new justices are political hacks or merely not as progressive as some would want, has yet to be seen. Are they venal partisan tyrants, fools or merely not a liberal’s preferred choice of justice? The sky didn’t fall with five. Whether six changes everything, or anything, remains to be seen. They might not be the justices you or I would choose if we were president, but that doesn’t make them the justices that Ruth Marcus presumes them to be either.

12 thoughts on “The Tyranny Of The Sixth Vote

  1. Chaswjd

    Between 1945 and 1953 every Justice on the Supreme Court had been appointed by a Democrat. And yet, the sky didn’t fall then.

  2. Mike V.

    Roberts hadn’t been a conservative since the ACA decision, and Gorsuch and Kavanaugh have regularly hewed to the center in unexpected ways.

    I think the New York gun case and the abortion cases will be a 5-4 decisions; but I wouldn’t want to bet on whether the liberal or conservative side has the majority in any of them. I wouldn’t be too surprised to see concurring in part, dissenting in part opinions in them as well.

    1. SHG Post author

      If it’s a 5-4 decision and the outcome is not what the progressives want, it will prove Marcus’ point that six put it over the top.

      Then again, if it goes the other way, it will just be an inexplicable anomaly of no significance, and the sky will definitely fall next time.

  3. LRB

    It has always amused me that the apparently ineluctable conclusion these critics draw from a 6-3 “conservative-liberal” split decision is that the six have cast aside the law and are doing what they prefer to promote a nefarious agenda, whereas the three are disinterested paragons doing real law. Surely it could never be that the boot is on the other foot?

    Even if they can’t be honest publicly, I would hope that these people (or their “conservative” counterparts, to be fair) have enough introspection to be embarrassed by how simplistically partisan the analysis is, but perhaps not. I suppose they’ve always been writing this nonsense, but they certainly seem to be getting more column inches now.

    1. SHG Post author

      You raise an important point that I neglected in this post, the other side of the coin is that the three-vote liberal wing are “disinterested paragons,” as opposed to Supreme Court justices who think differently on occasion. It’s easy to be strident in dissent, as it’s dissent, but that doesn’t make the dissent any more correct on the law than the majority.

  4. Skink

    Common intelligence is not served by continuing the use of “conservative” and “liberal” when it comes to judges. Those less legally-trained, including some lawyers, confuse the legal ideology with the political variant. Media types don’t care that there is a difference and never understand why the Justices sometimes fail to decide cases according to the political bent attributable to them through misnomer. Marcus went to law school, but never practiced. She is a media type.

    There should be better descriptors.

  5. DaveL

    A five-justice majority is inherently fragile. It necessitates compromise and discourages overreach.

    That’s odd, considering how I’m reliably informed that a 50-50 split in the Senate with the VP as tie breaker constitutes a mandate to reinvent society from the ground up.

Comments are closed.