Renewing my speculation: A Resignation in Time, that Saved Nine

The Chief Justice could step down, and let President Biden replace him with a sharply divided Senate.


A few days after Justice Ginsburg passed away, I speculated that Chief Justice Roberts could let President Biden replace him to avoid Court packing. I am renewing this speculation. If Diocese is any prediction, Roberts will consistently find himself in dissent. And the troika of progressive no longer have any incentive to join him. He will consistently stand alone.  I am unable to think of a Chief Justice in history who consistently voted alone, in dissent, or in the majority.

And this solo act will not be fun. He is not like Justice Thomas, who spent decades writing solo opinions. Indeed, the Chief really seemed wounded by Justice Gorsuch's barbs. I suspect that feud has been simmering for some time, but has only now become public.

Roberts's moment in the sun passed in the blink of an eye. I would not be surprised if he steps down soon. To cement his legacy (in his mind at least), the Chief will let a Democratic President and a sharply-divided Congress replace him. And I think President Biden would be prudent to elevate Elena Kagan as Chief Justice. She would be confirmed.

NEXT: Roman Catholic Diocese Part VI: The Scope of the Court's Remedy

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  1. President Biden would be prudent to elevate Elena Kagan as Chief Justice.

    I was going to comment. No need to – just the quote is enough to highlight Reason’s stupidity.

    1. They are all the same. I do not distinguish between Scalia and Ginsberg.

      1. That’s rather your problem, something you should speak with a psychiatrist about.

        1. David. I am not the one who believes minds can be read, the future can be forecast, and that standards of conduct should be set by a fictitious character. I do not believe you are psychotic. I believe that you are evil. The lawyer is using these made up doctrines to make $trillion, returning nothing of any value. Lawyers are not crazy, they are pure evil, the most toxic occupation in our nation.

    2. Reason has many writers, with varying opinions and intellect. Failure to understand this sheds illuminating light on the commenter.

    3. I don’t think you understand the extent to which this stolen election is going to poison the well, or how much scorched earth there will be. I suggest you look at John Quincy Adam’s election and how civil the supporters of Andrew Jackson were.

      It would be stupid for Joe Bite Me to elevate Kagan because what happens if she isn’t confirmed as CJ? Sure, she’s still a justice, but a disgraced & wounded one. Look to history on that, her tenure won’t be long.

      And as to Roberts, imagine if JBM can’t fill that seat, and it goes from a 5-4 court to a 5-3 court….

  2. Roberts is an Ivy indoctrinated, Deep State, enemy of our nation. He should be impeached for his decisions.

  3. “And the troika of progressive[s] no longer have any incentive to join him. ”

    You perhaps underestimate the ancient art of Coney-catching, long the mainstay of the big-city types.

    And as for the rest of it, no. Absolutely not. Simply not on.

    Mr. D.

  4. Interesting.

    However, based on my perception of human behavior, I expect that he will, instead, slowly change his opinions in a more conservative direction to be on the winning side. On the other hand, should Thomas resign, or Alito pass on, Biden could swing the Court leftward without Roberts losing anything.

    I have never met the man, but I find it difficult to imagine him relinquishing power, especially over a few insults. It’s more likely that he will verbally flambe Gorsuch whenever he gets the chance.

    Gorsuch keeps proving to be my favorite justice.

    1. When did Gorsuch insult the Chief or his arguments?

      1. Never mind I found it

  5. If the Rs keep the Senate there will be SC confirmations at all.

    1. And perhaps even if they don’t.

  6. Very strange. Prof. Blackman is “renewing his speculation” even though the occasion for it has disappeared. It’s pretty clear that there will be no court-packing. So now Roberts is supposed to resign because being the lonely centrist is frustrating? I suspect he will play the usually CJ political games (there wasn’t much time on this case), and find himself in the majority most of the time, but always pushing the majority towards the center.

  7. “It’s pretty clear that there will be no court-packing.”

    It seems equally clear modern America will not long tolerate a Supreme Court whose majority consists of bitter clingers. One way or another, that Court will come to reflect an America far more tolerant, modern, and reason-based than the current Court majority, and far more educated, accomplished, and modern than the backwater voters who put that majority in place. I expect this change to occur within four years, six at the most.

    Enjoy it while you can, Conspiracy fans.

    1. Arthur…it is Thanksgiving. Give the clinger thing a rest, for one day.

      1. An NPC only has so many responses it can go to.

        1. Alternate realities are great. Trump really won this year, you know. MAGA4EVA

    2. I rarely agree with Rev. Kirkland. But I think Gorsuch’s opinion in particular had a bitterness of tone that was extremely unwise, completely unnecessary, and not helpful for gaining public acceptance of the direction he wants to move the court in.

      It is very important, when one is changing the direction of the court, to do so without bitterness, without anger towards the people on the other side, and to write in a way that doesn’t sound like sniping. Chief Justice Roberts was right to criticize. Justice Gorsuch’s tone.

      1. Gorsuch can’t help it. He has been getting stomped in the culture war throughout his life. He just can’t stand all of this damned inclusiveness, reason, modernity, tolerance, science, freedom, and progress. He’ll be bitter — and an obsolete loser in modern America — for the rest of his life.

        1. In Kirkland’s mind, the people consistently authoring Supreme Court majority opinions are “obsolete losers.” Interesting

  8. I looked at the calendar to confirm this is not April 1.

  9. “And I think President Biden would be prudent to elevate Elena Kagan as Chief Justice. She would be confirmed.”

    Well, bless your heart! And who would take Chief Justice Kagan’s place as Associate Justice?

  10. This looks more like wishcasting than idle speculation.

    Did Roberts short sheet your bed at a Federalist Society convention?

  11. I had thought that the Chief joined Bostock so that Gorsuch could write the opinion. Not the kind of thing you would do if you did not get along with that colleague.

  12. I just fon’t see this.

    For court packing to be a possiblility, the Democrats would need a large enough majority to overcome several reluctant moderates. That doesn’t describe the incoming house, let alone the incoming senate. It’s not going to happen. There is no need to concede anything to avoid it.

    And. Chief Justice Roberts knows that all things can change in time and there is no need to fold when one is playing the long game. Justice Thomas, for example, is no spring chicken. A lot could happen during a Biden presidency. On average, the Supreme Court is evenly divided. Over time, things have a way of regressing to the mean. Justice Roberts could wait it out.

    The man is 65 years old. I don’t see why he couldn’t wait another ten years or so before retiring.

  13. “President Biden would be prudent to elevate Elena Kagan as Chief Justice. ”

    Is there even a single historical case of a President elevating a sitting associate justice to the chief justice slot? Certainly all the recent cases of replacing the Chief Justice involved an entirely new justice.

    1. Rehnquist (1986), Stone (1941) and White (1910).

    2. A new justice is the proverbial spring chicken, so are frequently done simultaneously with the new nominee, to gain as many years’ advantage as possible. It hasn’t happened many times, Rhenquist was one of the exceptions promoted from the bench.

      1. In the entire history of the United States, there have only been 17 Chief Justices. Of those, 3 (Rehnquist, Stone, and White) were associate justices when they were appointed. In addition, Charles Evans Hughes (1926) had previously been an associate justice but resigned in 1916 to run for President against Wilson, and Rutledge (1795) had previously been an associate justice but his nomination to be Chief Justice was rejected by the Senate. And in 1968, Abe Fortas, an associate justice, was nominated to be Chief Justice but withdrew when it became clear that he would not be confirmed. In short, it’s not uncommon for Presidents to appoint, or try to appoint, associate justices to be Chief Justice.

  14. Keep in mind, 70%+ of decisions are unanimous, 8-1, or 7-2, or even 6-3. 5-4 opinions are the exception not the rule.

    There will be plenty of opinions for Roberts to put his stamp on.

    I doubt that Robert’s ego will allow him to resign, it would be conceding defeat. Nor would it accomplish anything. I agree with the poster above: human nature being what it is, he will modify his opinions to ensure he is on the winning side.

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