New in Newsweek: "A Supreme Court divided cannot stand. John Roberts must step up or step off."

Here are five steps Chief Justice Roberts can take to bring the Court back in order. If by next July, Roberts cannot step up to this challenge—either through his own ineptitude or his own malfeasance—then he should step down from the Court.

|The Volokh Conspiracy |

Last week the Roberts Court reached its nadir. I summarized Joan Biskupic's four-part leak series here. Today, Newsweek has published my editorial. The title is stark, but warranted: A Supreme Court divided cannot stand. John Roberts must step up or step off.

Here is the introduction.

The Supreme Court has turned into a sieve. Last week, CNN reporter Joan Biskupic published a fourpart series that revealed the high court's private deliberations. Even worse, the leaks were designed to advance specific narratives about which justices are strong and which are weak. Chief Justice John G. Roberts is all-powerful. Justice Neil Gorsuch appears decisive. Justice Brett Kavanaugh looks weak and ineffective. And Justice Elena Kagan lurks in the background, eager to lend a helping hand to form a moderate coalition. We do not know who leaked the information to the press. It could have been the justices, their law clerks or even allies outside the Court. Frankly, it doesn't matter. These leaks have no doubt destroyed trust and camaraderie on the Court. Relationships will become distant, and the workplace will become even more toxic. There is only one person who can restore order to the Court: Chief Justice Roberts.

Alas, I doubt the George W. Bush appointee is up to the task. Roberts fancies himself the second coming of the great Chief Justice John Marshall. Not even close. Instead, now he more closely resembles one of his lesser-known predecessors, Chief Justice Warren Burger. In 1979, Bob Woodward and Scott Armstrong published the groundbreaking book, The Brethren. The reporters interviewed several of the justices and hundreds of Court staff to peel back the curtain. They revealed internal Court squabbles, painted some of the justices as partisans and highlighted Burger's inept leadership. This book tore the justices apart and created distrust for decades. Burger, an ill-suited chief justice, could do nothing to heal those wounds. Roberts now faces an even greater crisis of confidence. Unless he can rise to the occasion, and plug these leaks, the Roberts Court will tear itself apart. A Supreme Court divided cannot stand. If Roberts cannot unite the Court, he must leave it.

I offer five specific steps Chief Justice Roberts can take to bring the Court back in order. Here are the highlights:

  1. "First, the chief justice must immediately issue a public statement, on his own behalf, about the leaks. "
  2. "Second, after the chief justice publicly denounces the leaks, he must bring his colleagues on board.
  3. "Third, after all of the justices agree to condemn the leaks, Roberts must meet with his colleagues, one at a time. He should personally ask them whether they spoke to Biskupic or authorized someone to speak on their behalf—expressly or impliedly."
  4. "Fourth, Roberts should talk to every law clerk, staff member and employee of the Court, one at a time. Unlike the justices, they can be fired."
  5. "Fifth, and finally, all of the justices should then pledge that for the next term, in the midst of a presidential election, there will be no disclosures."

And here is the conclusion:

If by next July, Roberts cannot step up to this challenge—either through his own ineptitude or his own malfeasance—then he should step down from the Court. I don't reach this conclusion lightly. But leadership matters even more than jurisprudence. Roberts continually frustrates me with his calculating approach to deciding cases. Indeed, this never-ending balancing act may have contributed to the toxic climate among the justices. Yet, I can live with Roberts' frustrating legal reasoning—it will have a short shelf-life. Most justices are forgotten as soon as they retire, and their precedents fade just as quickly. Roberts will suffer that fate, sooner or later.

However, I cannot abide by a crumbling Supreme Court. I would much rather have a competent chief justice who I constantly disagree with, but who can manage the Court, than a failed chief justice who sometimes writes decisions I partially approve of while the Court tears itself apart. An occasional five to four victory, which throws crumbs to the Right, is not enough to sit by idly as a whirlwind demolishes the marble palace from the inside. And I lay down this marker knowing full well that President Joe Biden will likely nominate Roberts' replacement. Chief Justice Merrick Garland, anyone?

This op-ed will be controversial. But I hope it begins a process for the Court to bring itself back into order. I cannot abide by the status quo, which will rip the Court apart.

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  1. A low point for the Supreme Court? Or a high point for Josh’s ego?

    1. It’s a cold day in hell, but I agree with captcrisis here.

      1. And I agree with both of you.

        Blackman can criticize Roberts, of course, but saying the Chief Justice has to do what Blackman says or else resign is absurd self-flattery.

        So is Blackman’s interpretation of the leaks. Maybe the leakers have the objectives he imagines, or maybe not.

        Maybe, “These leaks have no doubt destroyed trust and camaraderie on the Court. Relationships will become distant, and the workplace will become even more toxic. ” Maybe not.

        Go back to telling the court how to manage seating for oral arguments. That comes across as (only slightly) less arrogant.

        1. Josh Blackman goes to war against Chief Justice Roberts!

          Once more unto the breach, dear friends, once more;
          Or close the wall up with our English dead!
          In peace there’s nothing so becomes a man,
          As modest stillness and humility;
          But when the blast of war blows in our ears,
          Then imitate the action of the tiger:
          Stiffen the sinews, conjure up the blood,
          Disguise fair nature with hard-favoured rage:
          Then lend the eye a terrible aspect;

        2. I’m amused by the apotheosis of arrogance himself — bernard11 — castigating Josh Blackman for “arrogance.”

        3. So, Blackman appears to be building a consensus here. What surprises me is that The Cato Institute and his law school concur in his analysis. (c:

          Anyway, while I’d be thrilled to see Biden appoint a replacement Chief Justice, I doubt that will happen. I also doubt Blackman will still advocate for his resignation a year from now regardless of what happens.

          1. Pure comedy option would be Roberts citing this editorial and stepping down in January.

      2. Ditto. I guess Josh sees a mole, thus a mole hill, but nobody else does, let alone a mountain.

        1. Oh, nice one!

  2. The only thing worse than a news headline that asks a question (the answer is always “no”) is a headline declaring that someone “must” do something (you and what army?)

    1. A majority vote of the House and 2/3 vote of the Senate.

      1. 2/3 of the Senate can’t agree when to break for lunch.

        1. The circumstances in which more than a simple majority is required in the Senate are increasingly limited . . .

  3. It’s not whether Josh Blackman “can live with” Robert’s faulty legal reasoning and lack of leadership leading to a crumbling Supreme Court, it’s whether America can.

    1. Relax. I expect Chief Justice Roberts to be a valuable contributor to the Obama Court. And not always by dissent.

      1. Obama’s ego is to big to be a SCOTUS justice. Not enough opportunity to make money off his fame too.

        That said, I’m sure Roberts will continue to see-saw back and forth.

        1. My experience with former Pres. Obama seems to conflict with yours. How many times have you met him?

  4. And your standing to issue this ultimatum to the Chief Justice of the United States is what, Professor?

    1. He is an American citizen.

      What more “standing” does one need to criticize a public official?

      1. And he’s not burning buildings or blinding cops, either…

      2. I didn’t criticize Prof. Blackman for his opinion (although I don’t agree with it either).

        I’m criticizing him for his self-aggrandized tone, which seems to presume that there’s some reason for the Chief Justice to comport himself in accordance with Prof. Blackman’s prescription and ultimatum, through and including his resignation for a life appointment during good behavior.

        I like Prof. Blackman, but I think he’s just shot off one of his own toes and displayed an astonishing tin ear.

        1. Then he’s not the only one with a tin ear, Beldar. I deeply respect Blackman’s analysis, even when I don’t agree with everything he says. He knows more about the Supreme Court than any of the commenters here.

          1. He certainly knows more about the Supreme Court than some of the commenters here. I’m not sure what your warrant is for claiming he’s the most knowledgeable.

            1. Second that.

          2. I don’t mind the presentation of contemporary events through a very conservative lens. But when his historical analysis is wildly inaccurate and skewed by his attempt to support some modern conservative or pro-Trumpian argument, that’s objectionable.

        2. Do you similarly criticize Democrats and other left leaning pundits when they make “demands” of Trump and/or McConnell?

          1. Beldar has been offering informed, conservative criticism of Democrats since before you burned your first cross.

      3. To criticize is one thing, but it is not the same thing as demanding that officials act as directed or resign.

        1. But is he pulling down statues of defeated enemies?

        2. “To criticize is one thing, but it is not the same thing as demanding that officials act as directed or resign.”

          “Demand” is common political rhetoric.

  5. Roberts fancies himself the second coming of the great Chief Justice John Marshall.

    Link, please?

    1. Roberts is trying to save the “system” from abrupt or disruptive outcomes. He finds a clever way to save the Affordable Care Act. He joins in a cute way to redefine “sex” in Bostock (rather than vote with the minority and let Ginsburg choose the opinion’s author). He stalls Trump’s efforts to change an Obama executive order (creating the appearance that some presidents are more equal than others).
      His opinions and positions may work for lawyers coming from the elite law schools, but the seem cynical to most of the rest of us. We start to see that the law is just a power game and that the people in charge can make the law do anything they want. The devil does NOT get the protection of the law. Critical Legal Studies are the guiding philosophy at the Supreme Court.

      1. No link. Didn’t read. Waste of time, waste of pixels & bandwidth.

  6. If there is such a thing as “The Greater American Self-Expanding Ego Contest”, Josh just won it.

  7. Are you sure you are not just writing this article because you are overly partisan and you feel betrayed that CJ Roberts isn’t as partisan as you had believed? This article would be more believable if it was from one of the respectable bloggers on this site, but in the context of your other articles it is clear what your goal is: delegitimize the Roberts court after the “blue” opinions (your words) were issued.

    1. In an alternate universe where Roberts voted with the liberals at conference but moved to the conservatives on several cases, this post would be about Roberts’s courage and leadership in the face of difficult times.

    2. Josh Blackman has been a critic of the Chief Justice for many years. This is not new.

      Blackman partisan? This accusation says more about you than it does about him.

      1. It’s not really an accusation, it’s more of an observation based on everything he writes.

      2. He’s very clearly partisan, but to me that’s not really a negative thing. It’s just something to keep in mind while reading his stuff. I usually like him as a challenge to my preconceived ideas.

        1. That’s actually why I read this blog, but not for this particular writer. The other bloggers engage in really solid legal analysis and make you think about their points, and even though they are mostly conservative/libertarian conclusions they are not beating you over the head in a partisan way like this writer does. Volokh and other writers have changed my mind on a lot of issues. Blackman feels like Fox news commentary.

    3. “Are you sure you are not just writing this article because you are overly partisan and you feel betrayed that CJ Roberts isn’t as partisan as you had believed?”

      Didn’t I accuse someone else of this motivation just a couple of days ago. I believe I was corrected at that time by being told that nobody was assuming Roberts was a partisan, because Ann Coulter didn’t trust him to be partisan enough.

  8. Welcome to 2012, when many people realized Roberts was destroying to Court to “save” it. And leaks have nothing to do with it.

    If Roberts follows the advice above, i hope each other justice tells Roberts to screw off when he tries to interrogate them.

    1. What are the legal implications of justices having a fistfight?
      Would the DC code apply — could they be arrested, and by whom?

      1. Life tenure.

  9. “Justice Elena Kagan lurks in the background”

    It was widely rumored that she was a lesbian, and I’m wondering about the partner being behind this. Or perhaps Roberts’ wife.

    This strikes me as coming from a partner/spouse — neither a justice nor a clerk.

    1. What

      1. Forget it, Noscitur. It’s Dr. Ed.

      2. I’m merely suggesting that the source(s) may be neither a justice nor a clerk.

        1. So why bring up “rumors” about someone being a lesbian?

          1. Makes you wonder if Dr. Ed is a lesbian.

            1. Have you heard any rumors?

              1. I’m not sure whether it would be better or worse for women if Dr. Ed were a lesbian.

        2. 1. Is there any basis for such a suggestion?
          2. If the leaks originated from a “partner/spouse” instead of directly from a clerk or justice, would that change anything about how we should base them?
          3. What does such a possibility have to do with the putative “wide[spread] rumor[s]” that Justice Kagan is gay?

          1. So what? Her sexuality has zero relevance.

            1. Except to explain a female significant other.

    2. Dr. Ed, whenever I think you can’t top yourself, you do.

    3. I think Sotomayor is a lesbian too.

      1. And there’s another one.

    4. Please repeat your “rumor,” but this time add some fictional event at uMass. My Dr. Ed comment bingo card needs just one more spot for me to win.

      1. Well played, Mr. Hook.

      2. Maybe it’s some kind of quiz-show-type scam, but as far as I can tell, everyone’s Dr. Ed comment bingo card is one spot away from winning.

  10. There’s a lot of things I could say about this, but I want to focus on the bizarre way you talk about Kagan.

    “And Justice Elena Kagan lurks in the background, eager to lend a helping hand to form a moderate coalition.”

    “And in the background, Justice Kagan hovers as a helpful mediator.”

    Lurk? Hover? She’s not some kind of witch or spectral spirit who possesses Roberts, dude. She’s not hiding. Why make it sound so menacing?

    1. Any conspiracy theorist will tell you about hidden forces lurking in the shadows, regardless of what conspiracy they think they’re illuminating. It’s the same thing whether they’re trying to sell a theory that the State Department is full of Communists or that the DOJ is full of Democrats.

  11. JOSH BLACKMAN is a constitutional law professor at the South Texas College of Law Houston

    Is it too much to ask that such a professor be familiar with the term of appointment for Supreme Court Justice?

    This column reeks of arrogance. John Roberts doesn’t have to do anything, and neither do any of the other Justices.

    1. I’d say your criticism “reeks of arrogance.”

      1. All you have posted on here are empty attacks on anyone who doesn’t like this editorial.

        That’s not how you defend a piece of work.

    2. “Is it too much to ask that such a professor be familiar with the term of appointment for Supreme Court Justice? ”

      Can you say “Samuel Chase”?

      1. Can you say “Samuel Chase”?

        I tried. Turns out I can.

        1. Maybe you have to say it three times in front of a mirror and then your favorite or most hated (or both) Justice continues to stay on the Court for life anyway.

  12. This argument fails to consider the possibility that Roberts was the leak and the leaks were designed to advance Roberts’ own agenda.

    Roberts seems to think that he is the White Knight of the Supreme Court in these partisan times, but he more like Don Quixote.

    1. Or his wife….

      1. It’s always one of those females.

        Hey Ed, what are your thoughts on the 19th Amendment?

        1. Now, now. That seems completely unnecesary Sarc. Ed didn’t mention anything negative about women.

          1. He’s speculating without evidence that the leaks came from Roberts’ wife.

            1. And you accused him without evidence of being biased against women also including any a red herring in those accusations.

              1. Now that you mention it, without any implications, or assumptions about what your answer is, what is your opinion about the 19th?

                1. You secretly want me to type that I think women are the reason why we have big government as government has become a substitute for men. And that if we deny women the right to vote that will put them in their proper place. Right? That is the kind of juice you desire to reinforce the dark side of the narrative.

                  1. Looks like you are all for women voting. Good.

                    Because I don’t have a dark side narrative – a Manichean universe is the right’s thing.

                  2. “You secretly want me to type that I think women are the reason why we have big government as government has become a substitute for men. And that if we deny women the right to vote that will put them in their proper place. Right? That is the kind of juice you desire to reinforce the dark side of the narrative.”

                    I’d just get a kick out of watching Aktenberg sue you for plagiarism.

      2. “Or his wife….”
        Why are you trying to bring Dulcinea into this? Anyway, they were not married.

  13. Kagan is Blackman’s Soros.

    1. I was trying to be a bit more charitable, but it’s hard to disagree with this.

  14. The Supreme Court has been divided, with 5-4 decisions on lots of major issues, for at least 30 years.

    Kennedy’s replacement by Roberts as the swing vote merely continued a dynamic that has been effect for decades. Lawrence v. texas was 5-4. Bowers v. Hardwick was also 5-4, trh other way. It’s been like that for a long time.

    If it stood for 30 years, why is it that it can’t stand for another year?

    Has Newsweek endorsed court-packing? If one wants to take extraordinary measures, perhaps it’s inevitable that one will try to fabricate some crisis or other to “justify” doing so.

    I often disagree with Supreme Court.

    1. Major social changes are being mandated by a 5 to 4 majority. So the law is whatever a majority of the Supreme Court says it is. It the Court decides that Jews are not human beings then that is the law of the land.

      If the Court rules that government officials must deny recognition/benefits/status to entities that do not support same sex marriage or trans rights, then that is the law of the land. If that happens (and that is what liberals tried to do with the Bob Jones case in the 70s, except using racial discrimination instead of gay/trans discrmination), then governments will be able to deny tax exempt status to nonconforming groups. This will put a lot of pressure on certain religious groups that will either conform to the new law or lose their tax exemptions and even their right to exist. States will be able to cancel their corporate charters. They will be unable to own or transfer property. A lot of progressives would love this. They hate religious groups and have been trying to change 501(c)(3) to remove religious charities from the list of charitable/exempt entities.

      1. If only there was some other branch of government that could influence the law of the land.

      2. I certainly disagree with various supreme court decisions, and have been doing so for many years. There’s nothing new about that. It’s been going on for a long time. This year isn’t really any different in that respect.

      3. Yes, if the Supreme Court wanted to, it could cause a lot of trouble in any number of ways.

        Similarly, the other branches of government.

        Indeed, one of them is causing a lot of trouble even as we speak.

        Telling the parade of imaginary horrors you choose are largely fantastical tales of future conservative victimization. ‘They’re gonna oppress the hell out of you’ is really becoming the right-wing lodestone these days.

    2. Lawrence v. Texas was 6-3.

  15. Legal community: This is interesting, but not terribly persuasive.
    Rest of world: Oh yeah, I skipped that article, do not think of Supreme Court much at all, and those supposed leaks sound completely inconsequential.

  16. I have an interesting and somewhat related question.

    Why is it that when the chief justice seat is vacant the president appoints someone completely new to fill that seat rather than promoting one of the sitting justices?

    1. The president can and has done both, as was the case with the CJ before Roberts, Renquist.

    2. Probably depends on who is on the bench at the time and whether (s)he wants to have to deal with two confirmation hearings.

    3. Because the new justice is usually on the young side, as SC justices go, and will reign for a long time as chief justice.

      Rhenquist, an older justice already on the SC, appointed to chief justice, is a rare exception.

      1. More precisely, of the 17 Chief Justices of the United States, 3 (William Rehnquist, Harlan Fiske Stone, and Edward Douglass White) were associate justices when they were appointed, and 2 others (Charles Evans Hughes and John Rutledge) had previously served on the Supreme Court but were in different positions at the time of their nominations.

  17. Newsweek? I remember there used to be a magazine by that name, I wonder what happened to it.

  18. Shouldn’t you be focusing your effort on verifying if this is an actual piece of journalism or just fictional agit prop? My money is on none of this is based off of any real leak.

    1. I’m thinking someone’s spouse.

  19. The Dude abides. Blackman? Not so much.

  20. I have seen the future of conservative legal academia, and its name is Josh Blackman.

    I actually feel sorry for right-wingers.*

    * Just for a minute, though..

  21. Prof. Blackman has persuaded me that Supreme Court secrecy probably should end. The Court is a public institution, funded by taxpayers, who should be entitled to know its workings. Certain public employees’ preference for lack of accountability seems a paltry reason to ignore the ‘knowledge is good’ rule.

    Thank you for the enlightenment, Prof. Blackman.

  22. I wouldn’t have heard of Biskupic’s reporting if Blackman hadn’t blogged about it, and I still haven’t read it because it seems like the sort of stuff that would only be of interest to a fanatical follower of the Supreme Court. It would take a lot more evidence than Blackman has provided to convince me that the leaks will harm the operation of the Court.

  23. I cannot abide by the status quo,

    Won’t someone please think of the third-tier toilet law professors??????????


  24. “First, the chief justice must immediately issue a public statement, on his own behalf, about the leaks. “

    He can do that if wants to.

    “Second, after the chief justice publicly denounces the leaks, he must bring his colleagues on board.

    How?

    “Third, after all of the justices agree to condemn the leaks, Roberts must meet with his colleagues, one at a time. He should personally ask them whether they spoke to Biskupic or authorized someone to speak on their behalf—expressly or impliedly.”

    Is he the Chief Justice, or the vice-principal? What if they say it’s none of his business who they talk to, which, by the way, it isn’t? What if the leaks don’t bother them?

    “Fourth, Roberts should talk to every law clerk, staff member and employee of the Court, one at a time. Unlike the justices, they can be fired.”

    About what?

    “Fifth, and finally, all of the justices should then pledge that for the next term, in the midst of a presidential election, there will be no disclosures.”

    This is ridiculous. If the leaks don’t come from a Justice what good does it do? And how is it in Roberts’ power to make the other Justices sign some sort of pledge?

    Wouldn’t it be silly if Roberts did a bunch of this stuff, and turned out to be the leaker?

    And to top it off, why does Blackman think that Roberts, whatever he thinks about the leaks, needs his advice on what to do about them?

    1. Well, I do think that these leaks (if they’re real) are a pretty major breach of how the court should be functioning, and as the primus inter pares it’s incumbent on the chief justice to shut them down. If the justices are leaking, he should use his leadership skills to persuade them to stop; if the justices are on board and the leakers are employees, the court needs to make it clear that it has a zero tolerance policy for such misconduct.

      On the other hand, 1. If Roberts hasn’t figured this out on his own, I doubt that Prof. Blackman is going to change his mind (and, of course, if Roberts is himself the leaker then it’s all pretty pointless anyway); and 2. Blackman’s breathless line-by-line analyses of the tawdry details only exacerbates the problem (and would be even worse if he had the influence he pretends to).

  25. None of this is surprising. Roberts is the chief justice and the swing vote, so of course he has influence. Of course the liberals are going to be willing to sign on to Gorsuch’s reasoning when he votes with them, just as they previously often signed on to Scalia’s. Of course Kagan, who has excellent writing skills and a mindset somewhat in tune with Roberts’, is going to have influence. Of course Kavanaugh, as the new Justice on the block, is going to start out lower on the influence totem pole.

    None of this seems even surprising, let alone “we can’t go on like this anymore” horrible.

  26. Roberts’ balancing act to preserve the establishment comes across as a prime example of the manager mentality and approach to the law. He seems to read the law and precedents in a convoluted way to justify the outcome he wants for the instant case instead of interpreting law and precedents in order to create a theory/approach that will work the best in future cases. This kind of ad hoc approach to cases suggests he was influenced by critical legal studies: judges decide what they want the outcome to be then pick and choose precedents to justify their opinion. We end up with the court acting as a super legislature imposing its version of aspirational laws on the country.
    So people in the country now how elites in their state capitals and the national capital creating sets of laws…society rules based on what the elites WANT us to be and do, instead of basing laws on what we actually are doing. The laws have less and less reference to the ordinary person. Some of us are pleased with the changes, but we don’t realize that the courts are spending their credibility and that each new set of aspirational laws has less and less legitimacy.

    1. By “elites,” I gather you mean educated, credentialed, reasoning, accomplished, decent, modern people?

  27. This episode caused me to check what had become of Newsweek. It appears to have followed United Press International — also once a legitimate, respected newsgathering operation — into a perverse netherworld, a feeding-at-the-fringe zombie wearing a misappropriated (but lawfully purchased) name.

    Josh Hammer as opinion editor? Were Charlie Kirk and Benny Johnson too principled to take the job?

  28. Because no other part of the government ever leaks at all, right?

  29. “This op-ed will be controversial. But I hope it begins a process for the Court to bring itself back into order. I cannot abide by the status quo, which will rip the Court apart.”

    That’s comedy gold all by itself. So serious, Josh. You sound like you think you just nailed the 95 theses to the Supreme Court doors.

    But this is in Newsweek. And it’s but one thesis that relies a bit too heavily on Kagan lurking, hovering, and otherwise menacing from the background.

    1. From the sublimely comedic (possible lesbian) “Kagan lurks, hovering…” to the calorie-free childish “ZooMass”, the freaking language goes on, and on.
      The Bard sleeps well tonight.

  30. Sorry NOVA I slightly misquoted you

    1. You’re good. “calorie-free childish ‘ZooMass’ captures it perfectly. The Bard does, indeed, sleep well.

  31. Looks like Josh Blackman has decided to join-in on the Cancel Culture trend.

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