The Volokh Conspiracy

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Volokh Conspiracy

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.