The pattern of Justice Amy Coney Barrett siding with left-leaning Chief Justice John Roberts and the liberal bloc of the Supreme Court, to establish a 5-4 majority against President Trump in key cases, has been very disappointing to conservatives. But Justice Barrett recently returned to the conservative side in the Ballroom case, leaving Roberts to complain in dissent like someone who has been stood up at a prom.
Let’s hope Barrett’s return reflects a realization of who brought her to the big dance, and it wasn’t Roberts. In important decision after decision, she’s been siding with the liberal wing and Roberts against Trump on pivotal issues ranging from birthright citizenship, to accepting mail-in ballots after Election Day, to ruling against Trump’s tariffs.
Last year Barrett also joined Roberts and the liberal wing to forge a majority against Trump to refuse to allow him to withhold $2 billion in wasteful foreign aid. Barrett additionally joined Roberts and liberal Justices in rejecting Trump’s request to postpone his sentencing in the outrageous New York criminal case shortly prior to Inauguration.
The culture of Washington, D.C., is toxic and can be overwhelming. Conservative Justice Thomas has aptly described D.C. as a “hideous place,” and many lose their way after taking a job in the Swamp, where the media run the show.
Once the liberal media began to mock David Souter, he flipped from Republican to align himself with Democrats despite having been appointed to the Supreme Court by President George H.W. Bush. Souter even timed his early retirement to allow Obama to replace him, contrary to the tradition of Justices retiring when the party that appointed them is in power to nominate their successors.
Roberts has Republican credentials and a bit more authority due to his position as Chief Justice, so he can seem like a leader whom another Republican appointee can safely follow without creating waves. But when Barrett does that, she provides the swing fifth vote for Roberts and the liberal bloc on the Court.
That’s why Barrett’s casting of the deciding vote on August 31 in favor of Trump on the Ballroom has more significance than White House architecture. Roberts’ squealing in dissent, which failed to hold Barrett’s vote, further suggests that the future alignment of the Court may have been at stake in this little shadow docket case decided without oral argument.
Barrett agreed with conservatives that there is insufficient legal standing to block White House construction when the lawsuit is based on an aesthetic disapproval by merely one D.C. resident, who expects to visit the area “about once a month.” The Court majority stated correctly that it “has not found standing in circumstances like these before,” and declined to do so here.
Barrett’s shift back to the conservative side may come just in time as highly contentious new cases are lining up at the Court for speedy decision. The most important of these is the liberal challenge to new postal regulations about how mail-in ballot envelopes must be marked before the U.S. Postal Service will deliver them to election officials.
Working hard over Labor Day weekend, on Sunday Trump’s splendid Solicitor General John Sauer filed an emergency application to the Supreme Court to stay an injunction issued on Friday by Obama-appointed Judge Indira Talwani against sensible new requirements issued by the Postal Service for delivering mail-in ballots.
The new postal regulation creates “standardized design and review requirements for ballot envelopes that build on practices the Postal Service has long recommended,” Sauer explains. The new rule “requires States to upload the name, address, and barcode information of intended recipients of ballot mail in an online portal – information that election officials would necessarily already possess to send ballot mail under the Rule to those recipients.”
This federal regulation does not “dictate ballot content, mailing or receipt deadlines, or ballot-counting procedures.” Contrary to liberal criticism of this new rule, it “plainly does not seize control of States’ administration of elections – it simply imposes reasonable preparation requirements for certain election-related mail.”
Just two weeks ago the Supreme Court held in favor of Trump on this issue, by finding that the liberals’ lawsuit against it was premature. But the same federal judge in Boston then decided in favor of the plaintiffs again, compelling Trump to seek Supreme Court intervention yet again to reduce potential fraud in the upcoming midterm elections.
The Democrat Party relies heavily on mail-in voting, which is more easily harvested by paid campaign workers without adequate verification that a voter knowingly filled out the ballot in secrecy to ensure its integrity. Too often, a Republican candidate wins based on in-person voting, but a swarm of late-arriving mailed ballots is then counted after Election Day to change the result, as occurred in 2020.
John and Andy Schlafly are sons of Phyllis Schlafly (1924-2016) and lead the continuing Phyllis Schlafly Eagles organizations with writing and policy work.
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