The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Politico Invited me to submit to a symposium on President Trump's reported decision to nominate Judge Amy Coney Barrett. It is titled, "A New Roberts Court Begins for the Last Time."
For the past fifteen years, the Supreme Court has been known as the Roberts Court. But in truth, each new justice forms a new court. Chief Justice Roberts has presided over numerous personnel changes. Justices O'Connor, Souter, Stevens, Scalia, Kennedy and Ginsburg left, and Justices Alito, Sotomayor, Kagan, Gorsuch and Kavanaugh have arrived. By election day, the Chief Justice will likely welcome Justice Amy Coney Barrett as the ninth member of the Court. And a new Roberts Court will begin.
The confirmation process for Justice Barrett will be excruciatingly painful. Yet, it will still be familiar—a process that we know, with a predictable outcome. The future of the court, on the other hand, is far more uncertain. In 2021, or perhaps 2025, Democrats will likely push to expand the court. Roberts may soon have to greet two or more new members, even though there were no departures. The chief may go through all the same formalities, welcoming #10 and #11 the same way he welcomed #9—but the Supreme Court will never be the same. We may be looking at the last new Roberts Court.
Think the Barrett hearings will be bad? Just you wait. Relish the moment. It will seem tame by comparison of what comes next.