Of Mice and Roberts

Why the Chief's long-game was always short sighted.


In 2016, I wrote an article titled, "SCOTUS after Scalia." I wrote a section on the short-sightedness of the Chief Justices's so-called "long game." What I wrote in 2016 resonates even more so today:

Finally, the "long game" depends on a stable composition on the bench. Richard Re notes an inherent limitation in the doctrine of one last chance, as applied to the so-called long game: "judicial majorities must be stable over a period of time before they can issue major decisions." 241 During the periods from NAMUDNO to Shelby County, and from WRTL to Citizens United, the same five-vote blocks were present (considering that Justices Souter and Stevens were replaced by like-minded jurists in Justices Sotomayor and Kagan).242This consistency is a historical outlier. The Supreme Court does not exist in a vacuum, where stasis is maintained. Everything changes. Even if the Chief Justice has a broad vision of what he wants to accomplish, had President Clinton appointed three new Justices, all of those plans would have vanished instantly. His first decade of planning and calculating would have been for naught, and the Chief Justice would have been in dissent for a generation. Even if a Republican President appoints two or three Justices, there is no way for Roberts to know how they'll vote. Maybe those Justices will also have a different master plan, and will not agree with the Chief's plan. Or maybe the nominee will turn out to be another Souter or Stevens. Or what if the plan falls apart much sooner?

The Chief Justice may cast votes to strategically preserve the Court's "legitimacy" (whatever that is). But what he cannot anticipate are changes in the composition of the Court. Whatever "capital" Robert built up in the Tax Return and DACA cases will be burned by exogenous circumstances. And I think the odds are high that the Democrats expand the Supreme Court as soon as they can.

The Chief suffers from what Hayek described as the "Fatal conceit"

Fisher and Harris illustrate the fundamental problem with a long game. The notion that a single Chief Justice can single-handedly shape the law over the course of decades, as if he were moving pieces around on a three-dimensional chess set, suffers from what F.A. Hayek referred to as the "fatal conceit."258 Our society as a whole is infinitely more complex than any one person could ever possibly understand. It is the "fatal conceit" of central planners that they presuppose enough knowledge to control all aspects of human existence.

The best laid schemes of mice and men, often go awry.

NEXT: RBG on Supreme Court Vacancies in 2016 and in 2020

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  1. The Democrats expanding SCOTUS would be incendiary.

    1. I don’t know about that, but it would be unpopular and wouldn’t pass. Court packing schemes are fantasyland.

      1. The size of the Supreme Court has been changed repeatedly. Leave it to conservatives to contend that fairy tales are true but reality-based history is fantasyland.

        1. Not in anyone’s living memory.

        2. While the size of the Court was changed several times, 1) not since about the Civil War and 2) never for the stated purpose of “packing” the Court. The early changes to size were all about balancing the workload. The last serious attempt to pack the Court was under Roosevelt and that went down in flames.

      2. It would be Schumer’s legacy just like Reid getting rid of the filibuster led to McConnell fulfilling his legacy of getting a record number of judges appointed.

      3. I don’t know about that, but it would be unpopular and wouldn’t pass. Court packing schemes are fantasyland.

        It would, and should, pass if the GOP abandons their no-confirming-nominees-in-an-election-year rule the very first time it constrains them, just four years after using it.

        I think it would be very destructive to expand the court, because there’s no limiting principle. But if Republicans decide that the only rule is power, then Democrats have no choice.

        1. So you’d destroy the Court because McConnell lied about why Garland wouldn’t get a vote and does exactly what Dems would do in his position? That makes no sense. I hope calmer minds appear in coming months after the immediate loss of RBG passes. Court packing is a classic escalation situation that is unstable and all but impossible to recover from prior to great and lasting harm to all involved. Destroying the only branch of federal government that has public’s respect and that both parties largely abide by its rulings can not possibly be Dems best response to Trump getting to replace RBG. Instead focus on getting control of Whitehouse and Senate. Biden could expect to get 1.8 Justices in his 1st term. Decent odds one of those is from conservative side. If Dems get 8 years then they can likely move balance back to current situation.

    2. No it wouldn’t. Show me in the Constitution where it says we must have 9 justices?? The Supreme Court is a joke anyway.

  2. Judicial review is prohibited by Article I Section 1. It gives law making power to the Congress. The multiple corruptions of Marbury v Madison void it for criminality. Its first application was in the Dred Scott decision. It violated a ratified treaty. It set off the Civil War. Other judicial reviews have been just as catastrophic.

    Congress should begin to impeach Justices for their decisions.

    1. Let them pack the Court. I want it engraved in the history books forever that it was the Left in a temper tantrum that struck the blow that led to the collapse of the Republic. Long after all the other petty politics crumble into dust this fact will be remembered.

      1. Open wider, AmosArch.

        And hope your betters do not start positioning the next wave of progress sideways before shoving it down right-wingers’ throats.

  3. One of the largest issues here is the gradual move from judges just interpreting the law, to judges actively ignoring the law (as suits their political leanings) and putting their own views into practice instead.

    Whether it be Sheryl H. Lipman, just blatantly ignoring the sentencing guidelines and previous judgement by the circuit court, or the Pennsylvania Supreme Court blatantly ignoring the law in regards to mail in ballots, to write in their own law instead.

    Judges need to interpret the law in a consistent way. Not make new law based on their political views, and change their interpretation to fit the politics of the system.

  4. The best laid schemes of mice and men, often go awry.

    1. If you’re going to base your post on a famous literary quotation, you probably should quote it correctly. I realize that’s 10 seconds you could be using to shit out another hot take, but the world will endure,

  5. Of course, to Blackman it’s simply impossible that Roberts took the postions he did because he thought they were correct.

  6. I certainly son’t know exactly what’s on Chief Justice Roberts’ mind, and I may be reading my own thoughts into him. But I suspect his effort is not so much the “central planning” effort of attwmpting to control the court’s decisions in detail, but a more basic one of preserving the court’s ability to guarantee basic, agreed rights, preserve the basic government system, and prevent tyrrany.

    This requires a court which the public does not regard as a mere puppet of whichever regime appointed the last justice, or as making essentially political decisions on political grounds.

    It in turn requires a common set of principles that a center of justices agrees to abide by and which creates a commonality of identity and continuity between the court’s liberal and conservative branches.

    The purpose of this strategy is precisely that it’s impossible to predict whether the court’s majority will be liberal or conservative in any given future year. He is seeking to avoid a 9-member court which ricochets wildly. He is also seeking to reduce the temptation of the political branches to pack the court.

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