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Legal scholar Jonathan Turley suspects that the U.S. Supreme Court’s recent rash of unanimous decisions is part of a purposeful ploy by the justices to send a loud and clear message to congressional Democrats.
That message, Turley speculated Wednesday in a column for Fox News, is to leave the high court the hell alone and stop threatening to pack it.
While the renowned legal scholar can’t prove that there is meaning to the recent unanimity, he believes the timing fits.
Late last month, Connecticut Sen. Richard Blumenthal subtly threatened to engender “seismic” changes to the court if it one day rules to repeal Roe v. Wade.
“It will inevitably fuel and drive an effort to expand the Supreme Court if this activist majority betrays fundamental constitutional principles. It’s already driving that movement,” he said to The Hill.
“Chipping away at Roe v. Wade will precipitate a seismic movement to reform the Supreme Court. It may not be expanding the Supreme Court. It may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents,” he added.
Turley warned at the time that such a move could backfire.
…The question is whether the Democrats are overplaying their hand. These not-so-veiled threats could have the same inverse impact on members like Chief Justice Roberts, who could view the attempt to influence the justices as a far greater threat than any court-packing scheme.
— Jonathan Turley (@JonathanTurley) May 31, 2021
“The Democrats are pushing to engage in court packing despite polls showing heavy opposition to the move from voters as well as opposition from the justices themselves,” he wrote for his blog.
Dovetailing back to the present, Turley noted in his Fox News column that there have been six unanimous rulings in the past two weeks alone. Of course, this isn’t unusual, and that’s a point that even The Washington Post admits.
“[W]hile 5-to-4 decisions — including the Tuesday blockbuster upholding President Trump’s travel ban — draw deserved attention, they obscure an important truth: The court values consensus, and justices agree far more often than they disagree,” the left-wing paper reported in the summer of 2018, days after then-Justice Anthony M. Kennedy’s retirement announcement.
“The ratio is staggering. According to the Supreme Court Database, since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in 19 percent of cases,” the Post added.
If I’m counting correctly, I believe the last 5 Supreme Court opinions have been unanimous. Which I believe means that the Court is fixed, democracy is saved, and the court packing commission can go home now.
— Casey Mattox (@CaseyMattox_) June 1, 2021
But it’s those few cases of major disagreement that drive Democrats up the wall, particularly because ostensible conservatives hold a slight majority, meaning they have the power to win most disagreements.
“Democratic members have continued to call the court, to use Joe Biden’s words, ‘out of whack’ due to the conservative majority. Senate Majority Leader Chuck Schumer, D-N.Y., and more recently Sen. Richard Blumenthal, D-Conn., have warned conservative justices of dire consequences for the court if they did not rule with their liberal colleagues on high-profile cases expected in the next two weeks,” according to Turley.
“Rep. Alexandria Ocasio-Cortez, D-N.Y., not only endorsed the court-packing scheme but went even further, questioning why we should listen to just nine people on such important questions. She appeared to question the very basis for Marbury v. Madison – the case laying the foundation for the Supreme Court in our constitutional system,” he added.
But this isn’t to say that conservatives always win. At times, the ostensibly conservative justices like Justices Brett Kavanaugh and Neil Gorsuch have sided with their liberal peers. And that’s because they judge each case individually and based on its merit. Their liberal peers claim to do the same, though some do appear to be ideologically driven.
Regardless, despite pressure from congressional Democrats, even the high court’s liberal justices have balked at the prospect of the court being packed.
“Recently, Breyer warned against any move to expand the Supreme Court. He also rejected the characterization of the current court as ‘conservative’ or ideologically rigid,” Turley rightly noted in his Fox News column.
In response, the left pounced and began calling for his retirement:
— Conservative News (@BIZPACReview) April 10, 2021
It’s not clear whether there are examples within the past few decades of conservatives ever pressuring an ostensibly conservative justice to retire.
Either way, Breyer doesn’t appear interested in retiring. And according to Turley, neither he nor his peers on both the right and left seem to have any interest in seeing the Supreme Court be altered just to appease the Democrat Party.
“[T]here are times when the justices speak loudest through their opinions, particularly when they speak with one voice. In these cases, the justices are discussing different subjects but they clearly want the public to see them speaking as one. One court. Unpacked and undivided,” he concluded in his Fox News column.
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