Didn't read the whole thing (paywall) but this just means that there will be more 6-3 decisions, rather than 5-4, right?
No it is about the technicalities of how writing opinions gets assigned
‘Chief Justice Thomas” was the headline of an article I wrote in the Journal late in 2004. I urged President George W. Bush to elevate Justice Clarence Thomas if Chief Justice William Rehnquist retired the following year. Mr. Bush didn’t follow my advice when Rehnquist died in September 2005. But as Amy Coney Barrett dons her high-court robe, Justice Thomas may find himself filling an unaccustomed leadership role.
Over the past decade Chief Justice John Roberts emerged as a frequent swing vote when the associate justices divided 4-4 along familiar liberal-conservative lines. In numerous cases—most famously National Federation of Independent Business v. Sebelius (2012), which upheld ObamaCare—he cast his vote with the four Democratic appointees, although his opinions were sometimes less sweeping than theirs. In June Medical Services v. Russo (2020), the court voted 5-4 to strike down Louisiana abortion restrictions, but Chief Justice Roberts pointedly declined to join Justice Stephen Breyer’s opinion repudiating the rules. Instead the chief justice made clear in concurrence that he was only adhering to a four-year-old precedent, from which he had dissented and with which he still professes to disagree.
A charitable observer would say that Chief Justice Roberts is concerned about the court’s legitimacy and independence—that he wishes above all to avoid the perception that it responds to political pressure. An uncharitable one would say that in pursuit of that objective, he is creating not only the appearance but the reality of a political court. Either way, with a Republican-appointed majority of associate justices, the chief justice has lost this tie-breaking power.
That’s where Justice Thomas comes in. The chief justice is an especially potent swing voter, because he also has the power to assign authorship of the majority opinion, including to himself. That can help shape a decision’s scope and direction—usually, in Chief Justice Roberts’s case, by making it more tentative.
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If the chief justice is in dissent, however, the assignment power falls to the most senior associate justice in the majority. Clarence Thomas is now the most senior justice, so he will assign authorship any time he is in the majority and Chief Justice Roberts dissents.
Justice Thomas is something of an anti-Roberts. His lone concurrences and dissents are usually not incremental but adventurous, urging colleagues to break new legal ground or rethink old precedents. In June Medical Services, he argued that Roe v. Wade was wrongly decided and should be overturned—a position no other sitting justice has endorsed since Antonin Scalia died in 2016.
So what does Chief Justice Roberts do when the associate justices split 5-3 along familiar lines? If he joins the liberals and makes it 5-4, Justice Thomas gets to assign the majority opinion and perhaps induce the court to a bolder conclusion. If the chief justice joins the majority, he makes the assignment. The resulting 6-3 decision will likely be less sweeping, but it won’t be liberal. Those who hoped for a conservative chief justice 15 years ago may finally get one.
Mr. Taranto is the Journal’s editorial features editor.