The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

From Blue Monday to Red Thursday.

From South Bay to Diocese.


Historically, the Supreme Court has moved at a glacial pace. Change happened gradually, if at all. Even when new members of the Court were appointed, doctrine took time to evolve. And often, the middle of the Court moved slightly. Even the most famous changes were really works in progress. For example, the so-called "switch in time that saved nine" was not an immediate response to FDR's Court Packing plan. Rather, President Hoover had selected several progressive-friendly judges years earlier.

We rarely see a sudden, prompt reversal in doctrine. The five months between South Bay and Diocese represent such an avulsive shift. In May 2020, Chief Justice Roberts was at the apogee of his power. As the decisive vote, he single-handedly established a super precedent that a hundred judges treated as gospel. On Blue Monday, Roberts pushed away any Second Amendment cases from the docket. And in Blue June, Roberts cast the deciding vote in critical cases that ran against the Trump Administration.

But in September, Justice Ginsburg passed away. And barely a month later, Justice Barrett was confirmed. Almost overnight, the Court's center of power shifted. Roberts could no longer command a convenient majority on demand. He would now have to work for five votes. In the past, Justices Breyer, Sotomayor, and Kagan would have gladly joined Robert's mushy middle if there were five votes, but now they ignored him. He no longer serves a purpose. Now the Chief stands all alone.

The new Roberts Court has arrived. Red Thursday bid farewell to Blue Monday.

Update: President Trump chimed in.