Without our traditions, our lives would be as shaky as a fiddler on the roof.

~Fiddler on the Roof/Act 1, Scene 1

The originally adopted U.S. Constitution consisted of 4,543 words.  Since ratification in 1789, only 3,048 words have been added through the amendment process.  In contrast, the average state constitution contains approximately 39,000 words.  Alabama leads the pack with 398,000+ words, largely the result of just short of 950 amendments.  (Source:  ballotpedia.com)  The ability of the federal government to operate with such a dearth of codified guidance demands a certain deference to tradition or what is more commonly referred to as precedent.

Throughout the past decade, several precedents which were once considered sacrosanct by the executive and legislative branches of government have fallen by the wayside.  I remember a time when it was customary for an incoming president to honor international treaties negotiated and ratified during previous administrations.   And Supreme Court nominations required the consent of 60 Senators to protect the right of the minority party to influence life-time appointments which could impact the nation for decades.

This should come as no surprise.  The branches of government established in Articles I and II of the Constitution are political by nature.  Washington, D.C. has been forever embroiled in a tug-of-war between the White House and Congress and between the major political parties.  However, precedent has a different connotation when it comes to the judiciary.  The Latin term is stare decisis, to stand by a decision. According to LAW.COM,  it refers to “the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court.”

It is sometimes referred to as the principle of settled law, an reference which has taken front and center during the confirmation hearings of several current justices, most recently Brett Kavanaugh.  In her statement on the Senate floor to ameliorate concerns Kavanaugh would vote to overturn Roe v. Wade,  Senator Susan Collins (R-Maine) told her colleagues, “He said that he agreed what Justice Roberts said at his nomination hearing, in which he said it was settled law.”

As we now know, Senator Collins was half right.  In a 5-4 decision to strike down a Louisiana statute which would have significantly limited access to abortion, Chief Justice Roberts kept his promise to pay allegiance to precedent and joined the majority.  His vote and his opinion on behalf of the majority make it clear he has not changed his own view since voting in favor of upholding a similar Texas statute.  He specifically states he still believes the Texas ruling was incorrect and would have preferred to uphold the Louisiana law.  But stare decisis, the Texas decision stands.  In contrast, Justice Kavanaugh reneged on his promise to Senator Collins.

The remaining question is what other political tools in use by the executive and legislative branches will become part of judicial deliberations.  The answer may come sooner rather than later.  One wonders if several recent decisions portend “logrolling” among members of the Supreme Court.  For those unfamiliar with the concept, the term is defined as follows.

The practice of exchanging favors, especially in politics by reciprocal voting for each other’s proposed legislation.

The evidence?  Somewhat against type, Gorsuch and Roberts join four liberal justices in Bostock v. Clayton County, Georgia applying the workplace non-discrimination clause in Title VII of the 1964 Civil Rights Act to the LGBTQ community.  Likewise, as previously mentioned, Roberts joins the majority in June Medical Services v. Russo overturning Louisiana abortion restrictions based not on content but the principle of stare decisis.

As other recent decisions prove, logrolling is a two-way street.  Just yesterday all four liberal judges joined in a unanimous decision to uphold a state’s right to punish presidential electors who defy the will of the voters.  [The impact of this decision on efforts to abolish the electoral college is a topic for another day.]

Do these decisions represent future Supreme Court deliberations turning into a closed-door version of “Let’s Make a Deal?”  Probably not based on the history of the practice in Congress.  Senators and representatives can only safely swap their vote on issues of less than primary interest to their own constituents.  For example, representatives from farm states can potentially support any piece of legislation they might normally oppose except matters related to agriculture price supports.  In the judicial context, it explains how Roberts could go along with DACA extension and LGBTQ employment protections as long as he made the difference in the 5-4 decision in Espinoza v. Montana Department of Revenue, a victory for proponents of public support for parochial schools.

My theory will be tested the next time there is a challenge to Citizens United v. Federal Election Commission, by virtue of state or federal legislation which somehow restricts campaign finance.  Two procedural issues could be in play.  Will Justice Roberts demand liberal justices follow his example in the Louisiana case and join the majority to uphold Citizens United on the basis of stare decisis, the matter has been decided?  Or will Roberts trade his vote supporting some modification of the “money equals speech” doctrine, e.g. state requirements for real-time reporting of all political donations, as long as the right to unlimited contributions is affirmed?

Or will liberal justices exchange their votes in Trump v Mazars which requires the Court to address the issue of checks and balances for conservative justices’ support in Trump v. Vance in which the New York City attorney’s office is demanding access to Donald Trump’s personal tax returns in a criminal investigation?  Are the liberal judges willing to wait to fight another day on the constitutional issue of congressional oversight if their colleagues will join them to force release of the tax information, invoking stare decisis on the basis of United States v. Nixon in which the Court granted access to the White House tapes.

Fasten your seat belts.  It’s going to be a bumpy ride.  And no one can predict whether the fiddler on the roof of the Supreme Court will be anchored enough to weather the storm.

For what it’s worth.
Dr. ESP