The Volokh Conspiracy

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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.