It is, in my opinion, difficult to disagree with the Supreme Court decision that prevented the governor of New York from imposing strict limits on religious attendance for public health reasons—while litigation on the substance of the case continues. But I wish to emphasize two subsidiary points, one being a quibble with the Wall Street Journal’s subtitle: “Justice Amy Coney Barrett cast the pivotal vote to depart from past cases” (“Supreme Court Blocks Covid-19 Restrictions on Religious Services in New York,” November 26, 2020).
The majority in the 5-to-4 decision was made of Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett. It’s not false to say that Barrett was a pivotal judge, but is slightly misleading to focus on her and say that she was the pivotal judge if the word is used in the sense of “decisive.” With a majority of one, every Justice who voted on that side was pivotal.
Another example: Suppose that Joe Biden had won the popular vote against Donald Trump not by 6,000,000 votes but by a single vote. The probability of that is infinitesimal, but let’s just assume it materialized. Then, each and every voter would have been pivotal. It would not have been false to say that Joe next door was the pivotal voter, but not very enlightening. (Note that recounts and challenges would very likely have switched the majority back and forth a few times, but this is not my point.)
In defense of the Journal, however, there is one reason to focus on Justice Barrett as a pivotal judge since she was the latest one nominated by Trump, in controversial circumstances shortly before the November election. If that seat had been left vacant, the Supreme Court would presumably have tied 4-to-4, and the lower court decision would have remained in force, at least for now, supporting Cuomo’s restrictions (if I understand correctly).
An observation of a different sort is that all three Justices nominated by outgoing president Donald Trump voted to defend freedom of religion guaranteed by the First Amendment, which is a good point in his favor—although he himself, to say the least, did not demonstrate strong preferences for the free-speech protections in the same amendment. The Supreme Court decision also suggests that conservative judges are often more likely to protect individual liberties than “liberal” ones, even if caveats are in order, including regarding Justice Roberts in this case. We are told that Trump consulted the Federalist Society on judicial nominations instead of relying on his empty and dangerous intuitions. One wishes he had done the same on trade and other economic matters.
READER COMMENTS
KevinDC
Nov 27 2020 at 7:17am
I think the reason these news stories focus so much on Justice Barrett as “the pivotal vote” isn’t merely because in the absence of her vote it would have been a tie. I think the focus is on her vote, rather than any of the other Justices in the majority, is because the seat she holds was until recently held by Justice Ginsburg who almost certainly would have voted to uphold a law restricting religious gatherings on the basis of public health. So the comparison people naturally think of isn’t “Barrett voting versus Barrett not voting,” it’s “Barrett voting versus Ginsberg voting,” and given that the other eight votes would have remained fixed, I can see how people might think of Barrett’s vote as being “decisive” in a relevant way worth considering.
Pierre Lemieux
Nov 27 2020 at 9:58am
Good point, @KevinDC. It remains true, I think, that one cannot be literally pivotal in relation to the dead.
Vivian Darkbloom
Nov 27 2020 at 2:26pm
Actually, if you understand how Supreme Court voting works, there is a better reason Barrett was “pivotal” than the other reasons given.
Namely, Supreme Court voting works as follows: The Chief Justice casts the first vote. That is followed, in order of descending seniority, by the other 8 Justices . Thus, Barrett being the most junior Justice, casts the last vote. Until another Justice is less senior than Barrett, she will *always* be the “pivotal vote” when the Court is divided 5-4.
robc
Nov 27 2020 at 4:58pm
Except when she is one of the 4.
Vivian Darkbmoom
Nov 27 2020 at 7:16pm
Yes, except for that case.
Vivian Darkbloom
Nov 28 2020 at 8:45am
Correct.
KevinDC
Nov 28 2020 at 8:13am
I guess that depends on how you’re defining what makes a something “pivotal.” If you define it to mean “in a 5-4 case, whoever’s vote happens to be counted last for ceremonial reasons,” then by that definition its pivotal. But while such a statement would be true, it’s only true trivially. If the Supreme Court was to adopt a new tradition where they alternate the counting of votes from most senior to most junior one case, then most junior to most senior the next, then in any 5-4 decision, you could say that Barrett was “the pivotal vote” in one and Roberts was “the pivotal vote” in the other. But nothing of significance has changed. Everyone is acting in exactly the same way in both cases, and bringing out exactly the same outcome regardless. So this definition of what makes a vote “pivotal” is more ceremonial than substantive.
But I think Pierre is using “pivotal” in the more standard sense of “had this person had not taken this action, then the outcome would have changed.” In this sense, the decision of Colonel Johann Rall to stuff the note into his pocket that a spy had given him (warning that George Washington was on his way to attack), rather than read it promptly, was a pivotal moment in the Battle of Trenton. Had that Colonel not taken that action, the outcome would have been very different. But in a 5-4 split, the idea that “the outcome would have changed if this person had taken a different action” applies equally to all 5 justices in the majority. It doesn’t particularly matter whose vote happens to be counted last or first, or why the votes were counting in a particular order. Any one of them could have equally changed the outcome with a different vote. Changing the order the votes are counted in would not change the outcome in the slightest, so defining something as “pivotal” on that basis seems like a very odd definition.
Vivian Darkbloom
Nov 28 2020 at 8:44am
“I guess that depends on how you’re defining what makes a something “pivotal.””
I agree with this, within reasonable bounds. I guess the point is that there are (as Pierre already acknowledged) various senses of the term “pivotal”. I’m not here to insist that the WSJ (or Pierre) conform to any preferred usage I may have or to say they are misleading if they don’t. I can’t read the mind of the person who wrote that subtitle to devine the usage intended, but I’m willing to assume that the WSJ was using the term correctly according to at least one usage. As far as “symbolic” is concerned, I think there is some small tactical advantage and power given to the least senior justice (ironically). After the others have formally tipped their hand, she was in a position to break the tie, one way or the other. Imagine the thoughts that go through the mind of that junior justice when asked, given a 4-4 vote to that point, how she would like to rule.
KevinDC
Nov 28 2020 at 9:35am
I agree that there are different ways one can define what makes a vote pivotal, and that the claim of whether or not a vote was “pivotal” will depend on how that term is defined. I also agree with Scott Alexander that “One cannot argue definitions, but one can analyze them.” If someone claims a certain factor made a decision “pivotal” and on analysis I find that they define the factor as “something which wouldn’t have changed the actual outcome,” then I’d just say that definition isn’t particularly useful and doesn’t communicate anything substantive.
But like I said in my initial comment, I do think there is a sense where Barrett’s vote could be called “pivotal.” Specifically, if we’re analyzing the situation of Supreme Court decisions being affected by Barrett’s recent replacement of Ginsburg on the court, then situations where she casts a vote in a 5-4 split can be called pivotal in the more substantive sense of “makes the outcome different than it would have been otherwise.” In this sense, I think it’s perfectly reasonable for journalists to say that Barrett’s vote was the pivotal vote – because they’re speaking in terms of “Barrett’s vote verses Ginsburg’s (presumed) vote,” and not in terms like “one of the five votes that made the majority” or “the vote that breaks a 4-4 split because it always gets counted last for ceremonial reasons.” You could also call Barrett’s vote pivotal by those definitions, if you wanted. I just think those definitions fail to make any substantive claims about how things would have been different otherwise, and therefore it doesn’t make much sense to use them.
Jon Murphy
Nov 28 2020 at 10:02am
Really? That’s neat. I didn’t know that’s how they did it.
Thomas L Knapp
Nov 27 2020 at 7:32am
I suspect the “pivotal” designation has to do with her recent confirmation. If the GOP hadn’t turned on a dime from “no confirmations in an election year” to “confirmations in an election year if it’s OUR guy making the appointments,” she would not be sitting on the court right now, and would therefore not have cast one of the majority’s votes.
Alan Goldhammer
Nov 27 2020 at 8:45am
He did rely on experts such as Steven Moore, Peter Navarro, etc. These are experts on economics and trade to some. I don’t think it is entirely true that Trump was relying on intuition for these two topics. In recent statements from potential 2024 Presidential candidates, one can see the Republican Party drifting towards a more nativist and anti free trade direction.
KevinDC
Nov 27 2020 at 9:41am
I don’t think this holds up. It’s not accurate to say Trump came to his anti trade and anti free market views as a result of consulting with experts. His public pronouncements (via Twitter and elsewhere) made it perfectly clear he was wed to his very strong mercantilist intuitions for a long time. He didn’t “rely on experts such as Steven Moore, Peter Navarro, etc”, to reach any these conclusions. His conclusions were firmly set going in, and he simply found people who agreed with his conclusions and put them in positions of power.
By analogy, I think it’s similar to the case of a religious fundamentalist who has a strong intuitive rejection of evolution. Such a person, if elected, could very likely put people like Michael Behe or William Dembski in positions that would allow them to influence policy related to science and education. But I don’t think it would make much sense to point to such appointments as evidence that the politician relied on the advice of experts because “these are experts on [biology and evolution] to some.” It would be plain as day that the politician in question was simply finding credentialed people who would support what they already believed. This, I think, is true of Trump and trade.
Pierre Lemieux
Nov 27 2020 at 10:08am
@KevinDC: A Reason piece a few days ago supports your point and shows that Navarro’s expertise is not at all obvious: https://reason.com/2020/11/08/peter-navarros-no-good-economic-nationalism/
Jon Murphy
Nov 27 2020 at 9:57am
I think it is, at least according to Peter Navarro:
Source
Mark Z
Nov 29 2020 at 3:23am
Maybe the inversion of Keynes’s famous quote is more accurate than the original: ‘The intuitions of politicians, both when they are right and when they are wrong are more powerful than is commonly understood. Indeed, the world is ruled by little else. Economists, who believe themselves to be quite exempt from any partisan influences, are usually slaves of some politician.’
Craig
Nov 27 2020 at 6:36pm
Just to expound a little bit here. Before ACB on court in a way Robert’s was the pivotal justice flipping between the more ideologically reliable justices. He would rarely find himself in the dissent.
Not anymore, ACB makes Roberts’ Kennedyesque role potentially irrelevant.
And now we can clear see why the socialists want to pack the court.
Mark Brophy
Nov 28 2020 at 10:32am
It wasn’t difficult for almost half the justices to disagree with the decision. The best part of the dissent points out that people go to church for an hour and spend part of the time singing. The majority should’ve given examples to counter that rather than mention tire shops. There are many other activities where the density of people is as high as the church but the length of time people gather is shorter.
We should ditch the autocracies and replace them with a government where the legislature legislates thoughtfully with public input and the Governor executes laws.
nobody.really
Nov 30 2020 at 1:45am
Related topic: If an eleventh person enters an elevator displaying a sign saying “Occupancy of this elevator by more than 10 people is unlawful,” precisely who has violated the law?
robc
Nov 30 2020 at 3:53pm
I don’t know about criminal, but I would bet the building owner would be the one on the spot for the lawsuit if it failed.
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