America faces no greater problem today than polarization.
I say that as someone who believes that we’re in the midst of a (still relatively low-grade) civil war — and that if the progressives effect the transformation of what Obama began and Biden now promises, we'll face far greater problems than polarization.
Still, there’s a difference between a country in the midst of a civil war and a country in which an odious regime emerges victorious at the end of that civil war.
While the civil war rages, polarization is indeed the problem.
That’s why the likely elevation of Judge Amy Coney Barrett (to justice) is so heartening.
It’s not simply that she’ll follow the Constitution and the law.
It relates to an old saying among court-watchers that each new justice makes for an entirely new court. The new dynamic that will arrive with Justice Barrett may just reduce the polarization wracking the country.
What’s more, we may feel those effects immediately — before she’s completed her first full month on the court.
Consider what’s unfolding with this upcoming election on Nov. 3.
Numerous states have put new, untested, and in many cases questionable voting procedures in place. Nearly all of them claim to expand ballot access; nearly all reduce ballot security.
Many are prone to easy fraud.
Whether these new procedures are part of a plan to generate a disputed election or not, they make the 2020 election very likely to raise court battles.
Given the stakes, that almost certainly means that the election will head to the Supreme Court.
The single most likely scenario involves procedural challenges to ballots collected, received, or recorded using new and insecure methods.
Furthermore, it involves enough ballots favoring Biden that if all challenged categories are counted, he will win; if at least some challenged categories are disallowed, Trump will win.
Now consider the posture of the Justices on the old and new courts.
The old court featured a four vote Democratic bloc that held together with stunning regularity. A decision with such high stakes would not have been the exception. Meanwhile, Justices Thomas, Alito, Gorsuch, and Kavanaugh would likely have examined applicable law and the specific facts of each challenged procedure to allow some and disallow others.
That would have left Chief Justice John Roberts as the swing vote.
More than any justice in memory, Roberts is highly attuned to optics.
He would find himself facing a choice: Should five Republican-nominated justices hand the Presidency to the Republican for the second time in twenty years against solid opposition from their Democratic colleagues?
Or, should a bipartisan majority hand the presidency to the Democrat?
From the perspective of optics, the latter option is an easy choice.
Law and truth be d****ed, a bipartisan 5-4 majority would hand Biden the election.
Now consider the new court.
Barrett will join her four colleagues who consider the law and facts.
With five votes in place knocking out at least some of the dubious ballots, Biden will fall short. That will alter Roberts’s optics calculus. Roberts will notice that the worst possible optics would be a 5-4 decision with the newly-appointed Barrett casting the decisive vote (against a bipartisan minority).
Even a 6-3 partisan split would be preferable.
But with five hard and one soft vote blocking Biden’s path to victory, there will be less pressure on the Court’s liberal bloc to stick together.
With their path to a Biden victory precluded, the three remaining justices will be freer to consider only law and facts.
What’s more, Roberts will be positioned to lean on them, arguing that given that they can’t change the outcome, the optics of a strong bipartisan majority will calm the country.
He might actually be persuasive with Breyer and/or Kagan, neither of whom are ideologs in Sotomayor’s league. In fact, Roberts might even successfully cite the importance Earl Warren placed on securing unanimity for Brown v. Board of Education, 347 U.S. 483 (1954).
All told, Barrett’s presence on the Court could make the difference between a narrow 5-4 majority placing Biden in the White House and a solid bipartisan majority keeping Trump in office.
Granted, it took a good many speculations to reach that result.
But the underlying logic is sound.
Barrett’s presence alters the harsh partisan calculus that has long held the liberal bloc together. Not only will that improve the Court’s performance, it will free Breyer and Kagan to become better, more impartial, less partisan justices.
Will Justice Barrett save America? Maybe not. But her elevation to the high court will mark an important step towards helping America save itself.
Dr. Bruce Abramson is a Principal at JBB&A Strategies, a Director of the ACEK Fund, a founder of the American Restoration Institute and the author most recently of American Restoration: Winning the Second American Civil War. Read Bruce Abramson's Reports — More Here.
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