Forecasting an Amy Coney Barrett Court
It appears that Mitch McConnell is absolutely committed to confirming Amy Coney Barrett to the Supreme Court, and if the last few decades of American politics have taught us anything, it’s that what Mitch McConnell wants, Mitch McConnell gets. Thus, barring any unexpected developments, it’s time to turn the analysis from the wisdom of the Barrett nomination to the imminent reality of her tenure on the bench. What will be her impact on the Supreme Court and on American law?
But first, some important caveats. One of the reasons why conservatives are so persistently disappointed by the rulings of the Supreme Court is that they seem to forget that they’re nominating a human being who has a particular judicial philosophy, not an automaton focused on specific outcomes. There is no such thing as a conservative “vote bot” who will reliably grant the results that partisans want.
Moreover, the post-Robert Bork conservative judicial career path is virtually engineered to deny us any specific insight into the outcomes of particular cases—this is particularly true of specific insights into judgments about Roe v. Wade. While Democrats have long felt comfortable publicly imposing a pro-Roe litmus test on their nominees, post-Bork Republicans have generally not felt comfortable enough in their majorities to do the same (to be fair, some Republicans oppose litmus tests as a matter of principle.)
The result is that the judicial careers of most modern Republican nominees are characterized by rulings that generally please the GOP public while departing from expectations frequently enough to create enduring frustrations.