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August 16, 2021

Post-RBG: “Tectonic shift,” changing dynamics at U.S. Supreme Court

In a discussion at the 2021 American Bar Association Hybrid Annual Meeting, panelists engaged in detailed analyses of a number cases taken up by the Supreme Court during the most recent term — highlighted by the late October arrival of Justice Amy Coney Barrett after a contentious confirmation process.

As well, panelists examined Barrett’s impact on the court and Chief Justice John Roberts’ changing role as the liberal-conservative balance of the court underwent a tectonic shift.

At the outset, moderator John M. Barkett, a partner in the Miami office of Shook, Hardy & Bacon, sketched out a statistical summary of the 2020-21 term.

In this 16th full term of the Roberts court, 67 opinions were issued, although Barrett did not participate in 12 of them, he said. Justice Brett Kavanaugh had the fewest dissents, while Roberts and Justice Clarence Thomas both wrote the most opinions. Of all the court’s decisions in the last term, just slightly more than half had eight or nine votes, Barkett said, noting that there were 10 decisions with five votes. That represents about 15% of the total decisions, or close to 7% less than the 2019-20 term, he said.

Currently in the court, “6-3 is the new 5-4 – so a five-vote majority takes on less of an ideological significance than it did with Justice (Ruth Bader) Ginsberg on the court,” Barkett said at the Aug. 6 panel discussion, “The Roberts Court 2020-2021: ACB for RBG and the Alliance Forming Around the C.J.”

Turning to the new dynamics on the court, panelist Kenneth W. Starr, of counsel at The Lanier Law Firm in Waco, Texas, and a U.S. former solicitor general, said he didn’t see any real surprises in Barrett’s first term.

“She seems to be very happy as a member of the incrementalist school. ‘Let’s decide what we need to today and let’s postpone until tomorrow what we can.’ And to that extent, she seems to be very comfortable with, and really in affinity with, the chief justice,” Starr said.

Panelist Pamela S. Karlan, who is on leave from Stanford Law School and serving as principal deputy assistant attorney general in the Department of Justice’s civil rights division, said she expects  it will take time for the contours of Justice Barrett’s legal philosophy to become clear. “I think the court has changed dramatically, and it’s too early to tell exactly where Justice Barrett will be on these things.”

Panelist Jamal Greene, a Columbia Law School professor, noted the shifting influence of Roberts because of the new court makeup.

“He’s kind of lost his court in some way with the changes in the court, but he can still retain some influence depending on how congenial Justice Kavanaugh and Justice Barrett are to his views, since he gets to assign opinions in close cases. So it will be interesting to see how that plays out.”

“The Roberts Court 2020-2021: ACB for RBG and the Alliance Forming Around the C.J.”  was sponsored by the ABA Section of Litigation and co-sponsored by the Civil Rights and Social Justice Section, as well as the Judicial and Young Lawyers divisions.