Supreme Court Justice William J. Brennan Jr., the Eisenhower appointee who became the liberal lion of the Warren Court, had a tradition for introducing every new batch of law clerks to the realities of the institution.
“Brennan liked to greet his new clerks each fall by asking them what they thought was the most important thing they needed to know as they began their work in his chambers,” Seth Stern and Stephen Wermiel write in “Liberal Champion,” their Brennan biography. “The … stumped novices would watch quizzically as Brennan held up five fingers. Brennan then explained that with five votes, you could accomplish anything.”
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.
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.
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.
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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. The October 2021 term is the first with six conservatives in place from Day One; the newest, Amy Coney Barrett, was not confirmed until several weeks into the court’s previous term, and the first year for any new justice tends to be a time of settling in.
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.
“The difference between six and five is exponential,” said Mike Davis, president of the Article III Project, which worked to confirm conservative judges during the Trump years. “With five justices to the chief’s right, they no longer need to compromise with the chief to win. And this means it is much more likely that the court is going to get to the conservative result most of the time."
The justices have defied some earlier liberal predictions of catastrophe, but there’s reason to believe this term may be different — and if not this term, then one not far off.
We're looking at a generational shift on civil, voting, and religious rights, where the country is permanently shifted towards a Christian Dominionist theocracy, where states become fiefdoms without a strong federal government tying them together, where a hopelessly deadlocked Congress, jammed by the GOP is unable to do anything to restore rights, and where people of color and women are afforded scraps of second-class citizenship, rights granted if and only if those rights do not impinge on the desires of white Christian men.
It will be a dark return to Jim Crow, segregation, and misery, where the status quo is enforced by any White man who chooses to take up arms to do so. This court has already destroyed enforcement of the Voting Rights Act. It's about to end Roe and affirmative action. It may end civil rights altogether, and eliminate 95% of federal agencies.
This decade is going to be one of abject enslavement.
