Supreme Court

Is John Roberts a Judicial Minimalist, a Coward, or a Strategic Maximizer?

None of these theories fully account for the Chief Justice's decisions, though the strategic maximizer view may come closest.

|The Volokh Conspiracy |

Chief Justice John Roberts.

 

There is much disagreement about other aspects of the Supreme Court's recent performance, few commentators doubt the crucial significance of Chief Justice John Roberts' role in determining the outcome of major cases. But while it's difficult to deny Roberts' importance, there are widely divergent interpretations of what he is doing and why.

In an insightful recent New York Times op ed, co-blogger Jonathan Adler argues that Roberts is a "judicial minimalist" who "seeks to avoid sweeping decisions with disruptive effects." On this account, he  wants "to resolve cases narrowly, hewing closely to precedent and preserving status quo expectations." Some conservative critics of Roberts' jurisprudence argue that he lacks "courage" and therefore avoids making decisions likely to anger the left. Northwestern University law professor John McGinnis contends that Roberts is balancing a number of different considerations, trying to "maximize" some combination of achieving conservative jurisprudential goals and protecting the Supreme Court's institutional standing.

Each of these theories have useful insights, particularly the first and third. But none fully accounts for Roberts' major decisions since he became Chief Justice.

Jonathan Adler has effectively shown that judicial minimalism really is an element of Roberts' thinking. But as he recognizes, "there are significant exceptions (most notably, Shelby County v. Holder, which invalidated a major component of the Voting Rights Act)." If Shelby County were the only such exception, or one of only a very small number, it could perhaps be discounted. But, in reality, there are a great many important cases where Roberts has cast crucial votes to overrule precedent, upset existing expectations or both. Notable examples include Parents Involved in Community Schools v. Seattle (2007) (severely limiting affirmative action programs in primary and secondary schools); Citizens United v. FEC (2010) (overturning precedents and laws limiting corporate speech rights), Janus v. AFSCME (2018) (overturning longstanding precedent allowing states to mandate mandatory union dues for public employees), Knick v. Township of Scott (2019) (reversing longstanding precedent barring most takings cases against state and local governments from federal court). This year, Roberts cast the decisive vote in Espinoza v. Montana Department of Revenue, which is likely to lead to the invalidation of Blaine Amendments barring state assistance to religious schools in 37 states; he also voted with the majority in Bostock v. Clayton County, a decision overturning many years of lower court (though not Supreme Court), executive branch, and  congressional precedent holding that sexual orientation discrimination is not forbidden by the Civil Rights Act of 1964. And this list could easily be extended.

My point here is not to criticize Roberts' decisions in these cases. I actually agree with nearly all of them (Janus is a possible exception). In the Knick case, I authored an amicus brief urging the result the Court reached, have written articles defending the result and explaining why the Court was justified in overruling precedent in this instance. Rather, my point is that these decisions are hard to defend on  grounds of judicial minimalism. If Roberts has a commitment to minimalism, he also evidently has other commitments that he values more. When the two come into conflict, the latter often prevail, including in a wide range of high-profile cases.

The list of Roberts' non-minimalist decisions also undermines claims that he lacks the "courage" to reach decisions that seriously offend the left. With the notable exception of Bostock, all of the cases I listed attracted widespread liberal criticism, often even anger. The same, of course, is true of Shelby County v. Holder. Citizens United generated more outrage on the left than any other Supreme Court ruling of in many years; it was also  unpopular with the general public. These reactions were predictable. Yet Roberts still cast a decisive vote for what became the majority opinion.

It's worth noting that Roberts' also deeply offended the left with his decision in the 2018 travel ban case (it angered me as well). I continue to believe it was one of the worst Supreme Court decisions of my lifetime. But one criticism I can't make against it is the claim that it was a written by a Chief Justice who lacks the courage to offend the political left.

The idea that Roberts seeks to avoid offending the left may contain one small kernel of truth: he does not want to completely alienate the left to the extent that they come to see the court he leads as illegitimate. He likely recognizes that the Court could potentially suffer a "legitimacy crisis," which could lead to measures such as court-packing or politicians refusing to obey judicial decisions that go against them. But, by the same token, he also would prefer to avoid alienating the political right to such an extreme degree, either.

In sum, I think Roberts has only a modest and limited commitment to judicial minimalism, one that in his mind often gets outweighed by other considerations. And while I don't claim that he's a profile in courage, he's also more than willing to attract left-wing criticism.

McGinnis' strategic maximization theory perhaps comes closest to accounting for Roberts' jurisprudence. As he points out, Roberts' willingness to balance jurisprudential and strategic considerations is not unusual for a chief justice. He is in this respect following in the footsteps of previous chiefs, including John Marshall and his own immediate predecessor William Rehnquist (for whom Roberts clerked). McGinnis also notes that Roberts is in an unusually strong position to engage in balancing, because he's not only the chief justice but—since the retirement of Justice Anthony Kennedy in 2018)—also the key swing voter on the Court:

His performance this term has been completely in keeping with that distinctive self-consciousness and concern with protecting an institution that he no doubt sees under threat. Court packing again poses a substantial threat. Several Democratic candidates for president called for it, and Democratic senators have threatened to eliminate the filibuster, so it might be achieved.

No chief justice wants to be remembered as the one who presided over court packing. Thus, it is not surprising that in high-profile issues Roberts moved decisively left, particularly in cases that concerned DACA and abortion rights. Dreamers and the right to abortion command majorities in the country and overwhelming majorities among Democrats who will decide whether court packing moves forward in a unified Democratic government.

On the other hand, Roberts wrote two opinions delivering long-sought victories to conservatives in Seila v. CFPB, where he broadened the President's power to fire the heads of administrative agencies and in Espinoza v. Montana Department of Revenue where he held that religious schools could not be prohibited from participating in programs in which a state contributed to private school funding. No one outside the beltway cares much about the removal power of the President, and the exclusion of religious schools is unpopular among the public, though not among academics of course.

Even in the DACA and abortion cases, Roberts may have been creating a foundation for conservative victories at a more propitious time. The DACA case strengthened the requirements for agency explanations of its decisions, which may be used to constrain the administrative state. His decisive opinion for himself alone in the abortion case subtly cut back on the balancing test that would likely invalidate more restrictions on abortions. John Roberts was a history major at Harvard and his model is John Marshall. He wants to leave the Court as strong as he found it, even if that means bobbing and weaving to achieve his jurisprudential and ideological goals.

I think John underestimates the extent of left-wing opposition to the Espinoza decision, and the degree to which state support for religious schools has (however unfortunately) gotten caught up in our culture wars. But the general thrust of this seems right.

As he explains, Roberts has conservative jurisprudential goals that he seeks to achieve. But he also wants to preserve the Court's institutional standing, both for its own sake, and because he knows he is unlikely to achieve any of his objectives if the Court's position is seriously undermined by court-packing or some other similar development.

At the same time, this theory cannot easily account for the pattern of his decisions. It isn't the case that he gives the left what they want in every particularly high-profile case, or that he does so in those where the liberal position is popular with the general public.  Citizens United, Janus, and Shelby County are all notable counterexamples.

Thus, it seems likely to me that Roberts' decisions in high-profile cases are also in large part dictated by how strongly he cares about the legal issues at stake. For example, cases like Janus and Citizens United (as well as many of his other votes), suggest that he has a strong commitment to a broad conception of freedom of speech, and is willing to offend both the left and the general public in order to promote it.

All of this is consistent with the strategic maximization theory, at some level.  The theory does not claim that institutional and reputational concerns will always outweigh jurisprudential ones. But it does make it difficult to test the theory, or to use it to generate determinate predictions about future cases.

Unlike justices such as Stephen Breyer and the late Antonin Scalia, Roberts has never systematically articulated a general judicial philosophy, unless you count his famous statement analogizing judges to umpires calling balls and strikes. He has also been careful not to tip his hand too much about which areas of law he considers especially important. Thus, it is hard to tell when institutional concerns will outweigh other considerations in his mind.

If I had to pick, I would say that Roberts is more a strategic balancer of multiple values than he is either a judicial minimalist or a coward fearful of offending the left. But his jurisprudence is not easy to pin down. Of course, that might be a strategic choice, too.

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  1. “I think John underestimates the extent of left-wing opposition to the Espinoza decision,”

    I think he dramatically over-estimates Roberts’ capacity to avert Court packing short of totally surrendering to the left on every issue. Just Heller and Citizens United are enough for them to be willing to do it.

    1. Brett, you normally don’t lie in your posts. But you’re doing so here, and I can’t figure out why. Court-packing has gained more traction here (and even now, it’s barely on the radar) because of one and only one reason; Mitch McConnell’s 100% legal and 100% amoral refusal to consider Garland’s nomination. That resulting 2-vote SCOTUS swing is huge, and still infuriates liberals today. (I have tons of liberal friends, and that act by McConnell *still* is the first thing all of them talk about when specifically asked about what political action was or was not good over the past 10 years. If you think “Citizens United” pushes liberals’ buttons . . . .)

      I don’t know a single liberal (NOT ONE) who thinks of Heller and anything worse than “A bad decision.” So, if there are bands of swarming liberals scurrying around vociferously hating Heller and using it as justification to Do. Something. Dramatic, well, then all of them have been hiding from me. Heller did not open the floodgates to massive changes in gun ownership, and it’s my impression (admittedly based on my extremely limited sample-size) that liberals disliked the decision, but it’s–during Trump–nowhere remotely close to the top of their collective “list.”

      1. I approve this message.

        My own view of Roberts is that he is more a dedicated Republican than a dedicated conservative. He’s happy to help GOP electoral prospects – see Shelby County, e.g., – but is more cautious with respect to Republican issues.

      2. “Lie”? You disagree with me about what’s going on, and I’m lying? Not mistaken? No difference of opinion? Just straight up lying? Seriously?

        1. Brett,
          Yeah, you’re right. That was over-the-top. While you and I almost never agree on social issues, you seem relatively restrained in your posts. (Okay, Dr. Ed has set the bar pretty low for everyone else, but still.) Not sure why your post triggered such a strong reaction from me. But I apologize. Full stop.

          1. We’re good, then.

            To be clear, Democrats were not talking, much, about Court packing right after Heller. They hadn’t gotten themselves to that place yet. They certainly had by Citizens United. By now they’ve set up camp in that place, and started building fortifications.

            The reaction to Heller, while it generally didn’t involve threats of Court packing, was utterly over the top, and the Democratic party has never accepted that ruling. It’s part of the grain of sand in the Democratic oyster that the pearl of Court packing is growing around.

            See, for instance, this reaction, when the Court granted certiori in the NYC gun case.

            “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

            That’s right, Democratic members of Congress directly threatened to pack the Court, in a brief TO the Court, if it dared to continue enforcing the 2nd amendment.

            There are two basic issues that are driving the Democratic party’s infatuation with Court packing: The 1st amendment, and the 2nd. Democrats want both a dead letter. Actually have proposed multiple amendments to gut the 1st amendment, while the 2nd they just want the Court to gut for them.

            I honestly think it’s too late for Roberts to mollify them, short of, as I said, utter surrender, just becoming a RBG clone, and cooperating in overturning major rulings the left finds offensive. The idea has taken root, and gotten established. The next time Democrats have the numbers to do it, they will.

            1. There are two basic issues that are driving the Democratic party’s infatuation with Court packing: The 1st amendment, and the 2nd. Democrats want both a dead letter.

              Simply untrue. Your interpretation of your opponents’ motives is, as usual, inaccurate.

              What drives the push – by some, hardly an “infatuation,” – is the sense that the court, and not just the Supreme Court, has been captured by the right. The Garland matter is the most striking example. You may have heard mention of the idea before – I’m sure you have selected quotes at hand – but I’d say that really increased support, as does McConnell’s ramming through of unqualified ideologues over the past four years.

              1. Look at my link: Members of Congress directly threatened, to the Court, in an amicus brief, Court packing. They didn’t do it over Garland. They did it over the Supreme court threatening to resume upholding the 2nd amendment.

                1. I looked at your link. As usual it doesn’t say what you claim.

                  First, five Senators is not “the Democrats.” Your overgeneralizations are tiresome.

                  Second, while they mention gun control, the brief covered many of the complaints I listed above:

                  Enter five Democratic senators, who on August 12 filed an unusual (shall we say) amicus brief. Written by Senator Sheldon Whitehouse of Rhode Island, the brief pointed out what everyone already knew—that the plaintiffs care less about out-of-state gun ranges in New York and more about “a [Court] majority’s help with their political ‘project.’” (The other senators are Richard Blumenthal of Connecticut, Dick Durbin of Illinois, Kirsten Gillibrand of New York, and Mazie Hirono of Hawaii.)

                  From there, the brief launched into a freewheeling discussion of recent politics surrounding the Court: the Republican blockade that kept Justice Antonin Scalia’s seat open for a year; the Trump campaign’s proclamation that the Court seat, and the federal courts, were on the 2016 ballot; the involvement of the National Rifle Association and the Federalist Society in judicial selection once Donald Trump took office; the flow of “dark money” into advocacy groups such as the Judicial Confirmation Network for advertisements supporting the nominees Neil Gorsuch and Kavanaugh; the long string of 5–4 decisions favoring Republican and conservative causes and splitting the Court on precisely partisan lines; and recent poll numbers showing that more and more Americans believe (in the words of one poll) that the Court “should be restructured in order to reduce the influence of politics.”

                  And of course there’s this discussion of the Republican response, claiming that the Democrats “pose ‘a direct, immediate threat to the independence of the judiciary,’ ” which you seem to have overlooked:

                  To convey how cynical this is, imagine that in 1937, Franklin D. Roosevelt had proposed his “Court packing” plan—and then accused Republicans of seeking to make changes in the sacred number of justices. The Court is already packed; the packing began in February 2016, with Scalia’s death, and continued with the Gorsuch nomination and Kavanaugh’s tantrum before the Judiciary Committee. And the packing effort has not even paused; Mitch McConnell has publicly said that regardless of the “election-year rule” he invented to block President Barack Obama’s nomination of Merrick Garland, Republicans will confirm another justice to the Court if a vacancy occurs next year.

                  Pretty accurate. The courts are packed. To claim it’s fine for the GOP to use one tactic to pack them but illegitimate for the Democrats to use another is just silly.

                  1. The point is, they explicitly threatened Court packing, “restructuring”, and the amicus brief was filed in the context of a gun case.

                    Yes, people who don’t care that words have actual meanings, (Left-wingers, IOW.) are willing to call Republicans nominating and filling vacancies they didn’t create by ‘restructuring’ the judiciary, “packing”. So what? We already knew that you just call stuff whatever you want.

                    1. It is not a threat . . . it is a proposal to comply with the long-established rules, in a manner consistent with precedent, for good reason.

                      If Republicans didn’t want to see the Court enlarged, they should have conducted themselves differently when in power; changed the rules that expressly authorize enlargement; and/or chosen political positions that did not make the Democratic Party popular enough to take the House, the Senate, and the White House.

                      Clingerism has consequences.

      3. LOL The Senate was entirely moral on Garland. They refused to give their advice and consent, as required by the Constitution.

        1. That is true. Just as enlarging the Court, in the manner expressly contemplated by the Constitution, would be entirely moral . . . regardless of the volume of right-wing ranting and crying about it.

          Enlarging the House of Representatives (and, consequently, the Electoral College) is a similarly good idea. Putting Wyoming in its place is overdue.

  2. Roberts is unprincipled & a travesty. At least the liberal justices make no pretense that their decisions are not purely driven by desired results in the case at hand.
    His surprising & thoroughly repulsive Obamacare vote is a prime example. After the oral arguments — when it seemed obvious to (objective) observers that the Court would strike it down — a former clerk to Justice Scalia told me that he thought a majority would find some way to uphold it…precisely BECAUSE it was such a large initiative by the Executive branch. He didn’t name Roberts, but he was right on the money. (Roberts’ reasoning in that case was transparently bogus.)
    Deciding hugely impactful cases on institutional/public relations grounds is bullshit & not admirable.

    1. Wah . . . wah. Stupid ole Roberts. Instead of being a deeply conservative Justice who votes with my interests almost all the time, I feel totally betrayed, and feel entitled to a justice who votes with my interests 100% of the time. Anything short of that is proof of that person’s ethical/moral lapse.

      Suck it up, buttercup. Put on your big boy pants. And stop whining . . . it’s unmanly.

      1. Hi there! You’re a dork, dick, and halfwit.
        I fervently believe that O-care is horrific in its consequences–there are about four billion ways the fed govt could’ve insured a nominal (in the scheme of things) number of uninsured and provided for preexisting condition coverage, short of cornholing the entire motherfucking healthcare system. (Spend 30 seconds googling the effects of that shithead bill.)
        But: that sentiment — i.e., practical criticism of O-care — which apparently made you period-blood your panties was not what I’d expressed in my initial post. Rather, I offered insight (via an ex-Scalia clerk) into the fakery, hollowness, and bullshit of Roberts’ eventual rationale for his jackshit vote.
        Happy Friday, shitheel!

      2. No one called him stupid santamonica811. Political hack, most definitely. Unprincipled elitist, absolutely. But not stupid.

    2. Roberts should have been Impeached for Obamacare.

  3. PICS may have been a major decision at the time, but you do not see it being brought up as much as a case like Citizens United when Democrats discuss the Supreme Court. I may be one of the more left leaning commenters, but having studied that decision extensively in Law School (even before the Supreme Court held oral arguments), I probably would have joined Justice Kennedy’s concurrence and maybe issued one of my own. I don’t believe that the Supreme Court needed to even reach whether racial diversity was a compelling interest. Seattle’s methodology could not meet any standard. One of the tiebreakers for oversubscribed schools was that the racial composition should be within a certain percentage of the districtwide number. Following Grutter, Gratz, and Bakke this is an impermissible quota. These schools were often oversubscribed because different High Schools had different specialized programs. Bringing popular programs to additional schools that were not close to being oversubscribed could have greatly resolved that problem.

  4. I doubt theres any supersophisticated 20 paragraph Somin explanation behind it. Roberts/SouterJr probably sees himself as some sort of great Mediator or Centrist. And like many other Washington bureaucrats, too much time out of touch among the DC cocktail crowd has warped his mind into thinking Centrist means smack dab between pulling down statues of Washington in the name of transgender intersectionality and the thinking of 80s Democrats.

    1. This mythic and powerful cocktail crowd is pretty impressive. Maybe it’s because the GOP never has any parties or fun.

      1. We’re too busy working and raising our families. Which is why single men and women are usually Democrats.

        1. . . . And college-educated people. The more education you have; the more likely you are to vote Democrat. Another meaningful demographic.

          1. Well, obviously, since these days the more education you have, the more years you’ve spent in a left-wing indoctrination camp. At this point, the left have even assimilated the STEM faculties at most institutions, so expect the rot at Boeing to spread.

          2. I’m a medical doctor.
            I had 8 years at University and 4 more years of resident training.
            I am conservative as is my entire anesthesia department.
            The surgeons are also conservative except for one plastic surgeon.
            I left the Republican Party and came here because I am sick of RINO’s.
            There are lots of educated people with jobs actually doing something who are conservative.

            1. None of what you post contradicts what the term ‘tendency’ means. Nor how statistics work.

        2. I was being sarcastic about the parties.

          I’ve lived in DC long enough to get invites to both. Conservative cocktail parties are just as stodgy and grasping as liberal ones. Someone as powerful as Roberts will be tiresomely fetted at either.

    2. Bingo.

      In the end, Roberts is a Coward.

  5. My point here is not to criticize Roberts’ decisions in these cases. I actually agree with nearly all of them (Janus is a possible exception).

    Conquest’s law continues to bear fruit.

    1. I’m a delusional conspiracy-theory nutbag. I have to cling to the idea of secret cabals and hidden powerful forces. The idea that individual men who wield enormous power sometimes vote in ways that make sense to them and no sense to me is a terrifying thought, as determinism is much easier for my little mind to comprehend, and existentialism just scares the crap out of me. Free will? Feh.

      Whew . . . mental/emotional crisis averted for another day!

  6. I tend to agree with McGinnis. And perhaps part of the strategy of a Strategic Maximalist is to “reverse no precedent before its time.” That does of course requiring having some finger to the wind of politics, to know what it is time, and no judge would EVER consider politics — except perhaps a CJ guarding the Third Branch. Of course the other justices do consider political issues in deciding when to grant cert.
    Even if I don’t always like where Roberts comes down on the issues, I do credit him as a meteorologist.

  7. My personal opinion (which has the value of what you’re paying for it) is that the Court packing noise/threats has really got to him. (And thus, as crass as it was, it was an effective strategy.) But here’s the thing: I really can’t fault him. The Framers erred IMO by not fixing the size of the court, as did each succeeding generation in failing to fix that error (especially after FDR). There were many decades when an amendment likely could’ve passed, with some horse trading here and there. Now? Forget it.

    If the Court can be packed whenever a party has a bare majority In Congress and the presidency (if they’re going to pack the Court, they certainly won’t hesitate to nuke the filibuster to do so), then it’s a huge worry for the Justices. 10-15 years ago I would’ve said Court packing talk was Alex Jones level stuff. Now? If SCOTUS would’ve gone the other way in June Medical, DACA, Bostick, and maybe have taken a 2A case or two, does anyone feel that there would not even be a 20% chance of Court packing coming up for a vote if Dems took the presidency and Senate in November?

    1. Right. The threat of court-packing is real, although there isn’t yet a betting market as to how real. To some degree perhaps Obama put it into play with his open criticism of Citizens United, although maybe that’s a stretch. But if you grant that as starting point, then Roberts in NFIB vs. Sibelius is guarding the territory of the Third Branch while kicking the ‘major question’ of ‘how to do health care’ back to the First Branch and staying out of the fray as much as possible. Whether or not we like his calls of ball and strikes, he wants to keep the umpires a part of the game — and not have them automated by congressional instant replacements.

      1. The Obama Court is going to be great.

        (Josh Blackman’s bawling about it will be great entertainment.)

        1. I don’t think an expanded court is coming any time soon, and I doubt Pres. Obama would feature on it even if it did. But I’ll admit to a wholesome chuckle at your parenthetical.

  8. So, what you are saying is that Roberts DOESN’T call balls and strikes. Instead He makes the call based on whether he thinks one team or the other is going to get mad and storm the field. How does this help the legitimacy of the court? If people get the impression that rulings are made for reasons other than what the law says, then they will have no faith in the courts at all. Of course, if the liberals think the courts are not deciding like they want THEY are the ones who seem to threaten to storm the field. Ultimately I think it may be a moot point. If laws are already open to such interpretation that we are constantly divided by political lines based on the judge appointed, then the courts really are just a third political branch, and people have already lost much of their faith in the court to rule on law. Not sure what there is to preserve. This baseball game is really just WWE.

    1. Of course, if the liberals think the courts are not deciding like they want THEY are the ones who seem to threaten to storm the field.

      LOL. The right has done an awful lot of field-storming in recent years.

      1. Perhaps we should, Impeach Roberts.

      2. I am not aware of Republican calls to pack the courts to make sure they rule they way they want. That seems to only come from the left. Or are you interpreting “storm the field” differently?

        1. See the comments above: Democrats regard the Senate confirming Trump’s nominees as a form of “packing”; The only way for Republicans to not “pack” the Court as far as Democrats are concerned is to leave judge selection up to Democrats.

    2. This is the short version of my theory. We have law that is derived from public behavior (“common law” or public/popular law) and we have law derived from legislation. When the court decides a case based on public/popular law, it maintains its public legitimacy. When the court acts as a super legislature, it detracts from its public legitimacy.
      For several generations, the court has been acting more and more as a super legislature. We are reaching the point where people are forgetting that the public/popular law even exists. The danger with this is that if the court becomes another political branch pushing a different set of aspirational laws, the public will realize that their actions and behavior are no longer reflected in the law. They will see “the law” as a set of rules that various groups of elites are trying to impose on them.
      I remember reading a blog post by a writer who grew up on Portugal. She described how the people living outside of the big cities ignored “the laws” passed by the government. There was no shame in this; the law no longer reflected what was right or wrong; it was just a bunch of rules that rich people living far away are trying to impose on us.

  9. My theory is that he is an alien robot.

    This theory has as much evidence as all others presented so far on this page.

    1. Probably not, but is that his real hair?

    2. As a long-time Pastafarian; it’s nice for me to see our raison d etre applied to judicial decisions. Welcome to the club, Alluz!

  10. What happened to the popular theory c. 2012 that Roberts was blackmailed? Come on guys, don’t go wobbly now. If you can keep a straight face while defending Trump, arguing that Roberts was beholden to his gay pimp Obama has a lot of good miles left in it.

    1. I was (am still) counting down.

  11. My eyes are tired — I initially saw the bars in front of him…

  12. “Is John Roberts a Judicial Minimalist, a Coward, or a Strategic Maximizer?”

    Is all of the above out of the question?

  13. Few people are that explicit or careful in their thinking. Rather, it feels internally like they just make calls based on, say, the legal merits but it turns out that this ends up influenced by things like policy preferences, outcomes and in Roberts’ case maybe institutional legitimacy etc.

    Maybe, hopefully, Roberts is more explicit than this but he is still human and I’d be shocked if this kind of leakage wasn’t part of the picture.

  14. You might be overthinking Roberts. A much simpler explanation for Roberts’ decisions is that his judicial philosophy is exactly what he says it is – objective review of the law and facts. Sometimes that means he takes a seemingly liberal position and sometimes a conservative one, because neither pole has a monopoly on rational, or irrational, decision making. Maybe you agree with most of Roberts’ decisions because they were, by and large, well reasoned decisions and objectivity is his guiding principle.

  15. I’m reminded of what Eisenhower said about Earl Warren.

  16. Thus, it seems likely to me that Roberts’ decisions in high-profile cases are also in large part dictated by how strongly he cares about the legal issues at stake.

    Want to know which legal issue Roberts cares most about? Just look for which kind of cases Roberts votes most consistently on. That would be cases which affect election outcomes directly, like Citizens United, Shelby County, and many others. On almost every one, Roberts votes and/or writes to maximize Republican partisan advantage.

    That is entirely in keeping with a theory of strategic maximizing. Roberts is willing to give ground on culture war objectives—even on issues with high political valence—because if they affect the ability of Republicans to rule, it could be an adverse effect. For instance, on the day Roe v. Wade was overturned, if it were, a huge political advantage would pass from the political right to the political left. The base-mobilizing potential of the abortion issue would pass to Democrats, while the religious part of the Republican base was placated. Abortion is an example of a kind of culture war issue on which Roberts will give ground to the left, because he understands that doing anything else would damage Republicans politically.

    What Roberts will not give ground on are issues which speak directly to election outcomes. Those come up in cases about voting rights, campaign finance, gerrymandering, vote counting, union political involvement, and most recently, access to information which might damage Republican candidates at the polls. On those, Roberts has been down-the-line-consistent, always maximizing to the extent possible the political advantage of Republicans.

    Roberts’ right-wing critics are foolish. He is a long-term strategic maximizer for right-wing rule, and a subtle one. It’s the subtlety the critics don’t get, or refuse to understand.

    1. Want to know which legal issue Roberts cares most about? Just look for which kind of cases Roberts votes most consistently on. That would be cases which affect election outcomes directly, like Citizens United, Shelby County, and many others. On almost every one, Roberts votes and/or writes to maximize Republican partisan advantage.

      Yes. He’s basically a loyal Republican.

      I’m not sure his other votes are necessarily calculated with the strategy you suggest, but it’s possible.

      Mostly, I just think he wants to maximize Republican electoral chances.

      1. A loyal institutional Republican, which is to say that he doesn’t give a fig about the issues that Republican voters care about.

        So unless it’s something the institutional Republican party cares deeply about, he just wants to make sure he doesn’t get protesters camping on his lawn, and maybe throwing Molotov cocktails through the windows. And he knows he’d have to go REALLY far left for the right to do anything like that.

        1. Correct. Which of course explains DACA. Only ordinary American conservatives don’t want their country filled with unassimilable, third world, non-white immigrants. The institutional Republicans do, because of a combination of a delusional belief they’ll be immune from the long-term effects and the short-term labor benefits.

        2. Isn’t a grasp of institutional needs precisely the reason why the Founders set us up as a representative Democracy?

          Isn’t not kowtowing to the voting base precisely why the judicial branch is so insulated from the voters?

          Seems like you really don’t like the American system of government.

          1. It seems to me you don’t get the idea of “representative”. It’s not a synonym for “bait and switch”, at some point, if voters want something, they should be able to get it by voting. Not find that voting for it reliably gets them nothing, or even its opposite.

            1. I don’t think the Founders thought that at all.

              There are some things the voters cannot get, no matter how much they want it. That’s what the Bill of Rights stands for.

              But they also ensured this structurally by inserting elites and vetos into the system to check the will of the people.

              I have some marginal quibbles with the way all these veto points end up working in practice, and I do think that state referendums add some needed spice to the process, but striking a balance between the elites and the populous, ensuring neither gets what they want entierly, is one of the Founders’ masterstrokes.

              1. “There are some things the voters cannot get, no matter how much they want it. That’s what the Bill of Rights stands for.”

                Nope. Even the Bill of Rights can be amended, but I mostly was talking about statutory policy, and judicial selection. Representative democracy is supposed to, to a limited extent, slow and moderate responses to public opinion. It’s not supposed to completely frustrate it. But it does on way too many topics.

                1. The Founders fear of tyranny of the majority is absolutely about frustrating public will.

                  1. “Absolutely about” ≠ “absolutely frustrating”; It’s more about moderating things. If a majority of the public persistently want something, eventually they’re supposed to get it.

                    1. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.

                      Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.

                      The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.

                      Federalist 10.

                      You’re wrong about the Founders intention with respect to even persistent majoritarian desires.

              2. Yes. But the Bill of Rights does not create a “right” to stay in this country because you came here as a child, a “right” to not have a citizenship question on the Census, a “right” to get a job from a private employer when you’re a mentally ill man who cuts off his schlong and calls himself a woman, a “right” to kill a baby because you’re too cheap and lazy to bringing him or her to term, or a “right” to explode inside another man’s rear end.

  17. I must say, I am reading these comments and shaking my head. It is interesting to me to read the perspectives of lawyers and law professors on Chief Justice Roberts. I do not mean that facetiously. I really do find the legal discussions fascinating. Consider this perspective.

    SCOTUS does not get any easy questions. That is a fact. Because of the difficulty and complexity of the questions they answer, we should expect a sizable proportion of 5-4 decisions. What are the data under Chief Justice Roberts? If you go by WaPo, ~20% of decisions under CJ Roberts tenure have been 5-4 decisions. That proportion is lower than the historical average (my understanding). Contrast that to the proportion of 7-2 through 9-0 decisions under his tenure. That proportion is higher, and higher than the historical average (again, my understanding from WaPo). Is this not exactly what we want from a purely Federal Republic perspective; namely, a SCOTUS that provides definitive answers to constitutional questions? My gut tells me the answer is yes.

    I don’t think that looking at SCOTUS justices through a nakedly political lens is appropriate. It just does not fit all that well. Nor do I think that liberal/conservative ideology really fit all that well either. So evaluating CJ Roberts (or the others) through a purely political or ideology lens doesn’t really fit either. It just does not make sense to me. What does make sense to me is his general philosophical orientation that he talked about during his confirmation; pragmatism, consensus and circumscription.

    I like the strategic maximizer description because I think it accurately reflects CJ Roberts tendency toward narrow and circumscribed rulings, generally. My perception is that CJ Roberts leaves the door open to future SCOTUS courts, precisely because he circumscribes the legal questions SCOTUS answers in order to build consensus. I also believe that is by design. That leads to my second question. Is this not exactly what we want from a purely Federal Republic perspective; namely, a SCOTUS that narrows constitutional questions that they answer? My answer to that is yes.

    I thought CJ Roberts’ dissent in the OK case reflected his pragmatism. Personally, I thought McGirt v. Oklahoma was pretty big. Declaring 1/3rd of OK as indian reservation? Really? I understood the outlines of the decision, but whoa. CJ Roberts wrote at some length in his dissent on the practical challenges and implications. There are so many questions that will now have to be answered as a result of this decision. You fine lawyers and judges will be busy for a while answering all of those questions.

    I believe the wrong lens (political, ideological) is being used to evaluate Chief Justice Roberts, because it is based on a false (or very incomplete) premise.

    1. “SCOTUS does not get any easy questions. That is a fact.”

      OK, I’m going to disagree with that. The Supreme court gets plenty of tough questions, questions where something is on the margin, and it’s not clear where to draw the line.

      They also get easy questions, because on some easy questions, the lower courts don’t like the easy answer, and are prone to rationalize getting the easy question wrong.

      Now, I’m not saying there aren’t public disagreements over these sorts of easy questions. Not liking the easy answer, and being willing to rationalize the wrong answer, isn’t limited to the judiciary. That something is controverted trivially, tautologically, makes it “controversial”. But it doesn’t mean that both sides have a real argument.

      Take the 5-4 decision this week on Oklahoma’s indian reservation. It was 5-4. The lower courts disagreed. But, it wasn’t a hard case, in the sense I’m talking about. It was an easy case for anybody who didn’t give a damn who won, because there was a freaking TREATY dictating the outcome. To decide it the opposite way you had to reject the idea that treaties are binding. And the Constitution itself, which every judge is sworn to uphold and defend, states that treaties are law, second only to the Constitution itself.

      1. Actually, no. I have no stake in the outcome of McGirt. I’m a former tribal prosecutor and sympathetic to upholding the rights of Native Americans. However, there is a LOT of law on disestablishment of reservations. Gorsuch and Roberts were on opposite sides. They both had good points in their respective opinions. And with respect to the Creek Reservation in Oklahoma, it was a close call.

        1. This is what I’m talking about: We have a treaty. We have not withdrawn from it. Does it even HAVE a provision for withdrawl? It said it was a perpetual treaty, and time has not ended. Treaties are the 2nd highest law of the land, second only to the Constitution itself.

          In principle, it doesn’t get easier than this. So, why is this even a case, let alone decided 5-4?

          Because the US has a long history of violating such treaties, and the judiciary a long history of failing to enforce them.

          But that doesn’t change the legal principles involved. It just makes people reluctant to follow them.

        2. Brett also knows nothing of Marshall McLuhan’s work.

          1. Because Marshall McLuhan is so persuasive, that to know of his work is to be persuaded by it.

            1. I was referring to a scene in Annie Hall to which Dark Night’s comment bore a striking and IMO comical resemblance.

              1. Leo,
                I think most of us got it. (One of the classic scenes, from a classic movie.) I try to fit, “You know nothing of my work.” into casual conversation whenever possible.)

  18. We can define a three legged stool. “public interest”, “the rule of law”, “reputation of the court” Strategic maximization refers to that 3rd P.R. leg. IMO, that’s not a legitimate factor to consider in SCOTUS decisions.

    1. Not that I agree with the ‘preserving the SCOTUS’s reputation’ analysis of Roberts, but it’s not per se immoral.

      Perhaps changing the 3rd leg to pragmatism. What you need to do in order to keep the Court effective and able to continue to operate in the public interest and be a steward of the rule of law. Reputation would be only one facet of that, but the most evident.

      1. “but it’s not per se immoral.”

        Yes, it is. Because the judicial oath doesn’t say diddly squat about preserving the Court’s reputation. Not one word. Roberts is sworn to do something completely different, and logically unrelated.

        1. If the Court has no reputation, it cannot operate.

          It is immoral to insist on purity of ideals to the sacrifice of function.

          Not that I do not advocate for the reverse – purity of function to the sacrifice of ideals. Reputation cannot be the sole object of the Court.

          But some amount of pragmatism is not only moral, it is necessary.

          1. That’s just a rationalization for doing the wrong thing. In reality, if the Court always upheld the Constitution though the heavens should fall, they’d have moral authority to burn.

            But even if it didn’t work out that way, it would at least be someone else doing the wrong thing, with the Court at least shouting the truth about it.

            If you only follow your principles, uphold your oath, when it seems a good idea, you have no principles, and your word is worthless.

            1. Faith without acts, eh Brett?

              1. Yes, an oath to the Constitution that doesn’t constrain you to follow the Constitution is no oath at all.

                1. Ah. I see the issue here. You think interpreting the Constitution is absolutely directive, without any range of interpretive discretion.

                  That’s not how language works, much less how any doctrine of Constitutional interpretation works.

                  If you don’t care about reality, you’d keep on keeping on with Plessy regardless of it’s real-world effects.

  19. Roberts is what he always has been. Remember that, unlike the other right-wingers engaging in what were essentially dorm-room bull sessions, Roberts had a distinguished and lucrative career advocating for the concrete, pocketbook interests of his paymasters. They didn’t give a damn about ideological purity, wanted as little as possible to do with the boob-bait for bubbas issues, and didn’t fantasize about undoing the 20th century and the administrative state. They wanted guidance through the shoals and some dredging of the channels. Roberts the advocate gave them that when other parts of the Republican/conservative legal priesthood wanked about meaningless formulae and niche issues. Roberts the Chief Judge is giving the paymasters what they want and need instead.

  20. You sound like QAnon or the old Protocls of Zion. Or, I suppose, a Communist revolutionary.

    Shadowy paymasters who own high political officers aren’t a thing.

    1. There was nothing “shadowy” about Roberts’s paymasters as a practising lawyer — though the more common word is “clients.” They were, and had to be, right out there in the open. And they didn’t “own” him, they merely rented him. I have no doubt, though, that Roberts sincerely believed most of what he was advocating for, and that, either gradually or by long-standing conviction, he came to adopt the paymasters’ general view of things. I believe That general view, probably sincerely held, animates his jurisprudence.
      I should make clear, though, that this is not a criticism of Roberts. In fact, I think it is one of his better qualities, He, like his paymasters, has a sense of reality and priorities that the dorm-room bullshitters and cossetted wankers lack.

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