When the Chief Stands Alone

Chief Justice Roberts wrote one solo dissent in his first fifteen years on the bench. He has written three in the past four months.

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On Monday, the Supreme Court decided Uzuegbunam v. Preczewski. The Justices split 8-1. Justice Thomas assigned himself the majority opinion. And Chief Justice was the lone dissenter. Never before had Roberts been the lone dissenter in an 8-1 decision. Indeed, since Roberts joined the Court in 2005, he has only written four solo dissents. Three of them have been in the past four months. After a term at the pinnacle of his power, the Chief stands alone.

First, Roberts wrote a solo dissent in United States v. Windsor (2013). That case split 5-4. Remember this prescient observation from the Chief's dissent?

The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their "historic and essential authority to define the marital relation," ante, at 2692, may continue to utilize the traditional definition of marriage.

ObergefeLOL.

Roberts would not write another solo dissent again until November 2020. Roman Catholic Diocese v. Cuomo split 5-4 a few days after Justice Barrett joined the bench. Of course, that decision reversed Roberts's super-duper South Bay precedent. Roberts's third solo dissent came in Agudath Israel v. Cuomo, the companion case to Roman Catholic Diocese. And the fourth solo dissent came in Uzuegbunam.

Over the past 15 years, the Chief has rarely stood alone. Going forward, as the Court shifts to Roberts's right, I think we will see more and more solo Roberts dissents. The liberals no longer have any incentive to join his idiosyncratic approach. Four does not make five.

Robert's predecessor, and former boss, wrote far more lone dissents. By my count, Rehnquist had five in two decades. Four of these lone dissents came shortly after Rehnquist became Chief: (1) Hobbie v. Unemployment Appeals Com'n of Florida (1987);  (2) Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988); (3) Tulsa Professional Collection Services, Inc. v. Pope (1988); and (4) Penson v. Ohio (1988). Rehnquist's fifth lone dissent came four years later in Chemical Waste Management, Inc. v. Hunt (1992). Five more years would elapse before the sixth lone dissent in Chandler v. Miller (1997). Rehnquist's final lone dissent came in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton (2002).

One final observation about Roberts's dissent. He really, really likes citing Chief Justice Jay's famous "Correspondences of the Justices." Here is the passage from Uzuegbunam:

Five years after Hamilton wrote Federalist No. 78, Secretary of State Thomas Jefferson sent a letter on behalf of President George Washington to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for advice about the Nation's rights and obligations regarding the ongoing war in Europe. Washington's request must have struck him as reasonable enough, since English sovereigns regularly sought advice from their courts. Yet the Justices declined the entreaty, citing "the lines of separation drawn by the Constitution between the three departments of the government." 3 Correspondence and PublicPapers of John Jay 488 (H. Johnston ed. 1891). For over two centuries, the Correspondence of the Justices has stood as a reminder that federal courts cannot give answers simply because someone asks. 

Roberts included the same citation in his dissent from Campbell-Ewald Co. v. Gomez (2016):

In 1793, President George Washington sent a letter to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for the opinion of the Court on the rights and obligations of the United States with respect to the war between Great Britain and France. The Supreme Court politely—but firmly—refused the request, concluding that "the lines of separation drawn by the Constitution between the three departments of the government" prohibit the federal courts from issuing such advisory opinions. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1890–1893).

And Roberts included the same citation in U.S. v. Windsor (2013):

In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the "primary role" of this Court, it is not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become "'the province and duty of the judicial department to say what the law is.'" That is why, in 1793, we politely declined the Washington Administration's request to "say what the law is" on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit.

In case you were wondering, Roberts managed to cite John Marshall twice. Once as a member of Congress:

As John Marshall emphasized during his one term in the House of Representatives, "[i]f the judicial power extended to every question under the constitution" or "to every question under the laws and treaties of the United States," then "[t]he division of power [among the branches of Government] could exist no longer, and the other departments would be swallowed up by the judiciary." 4 Papers of John Marshall 95 (C. Cullen ed. 1984) (quoted in Daimler Chrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006)) [Roberts, J.]. 

And of course, Marbury.

The Judiciary is authorized "to say what the law is" only because "[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret the rule." Marbury v. Madison, 1 Cranch 137, 177 (1803) (emphasis added). Today's decision abandons that principle. 

The Chief is nothing if not predictable.

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  1. He’s hedging his bets and rolling over to give the atheists whatever they want to prevent the night mare hypothetical scenario where they pack the Court and get whatever they want.

    1. Well, then he’s a fool, because he’s no longer the swing justice anyway, so he doesn’t have the power to give the left what they want. And Court packing is already baked in at this point, the only question is what pretext they’ll use.

      1. Why do they need a pretext?

        It’s called political will.

        When Congress and the President are of the same party, a lot can be done.

        Unless you’re the Republican party circa 2017 – 2018.

        1. They need pretext because even the worst dictators rely on assistance from people who haven’t yet killed off their consciences.

          Pretext is the pillow those people use to muffle the tiny voice saying, “You shouldn’t be doing this!”; Like a pillow, it eventually silences it for good, but that takes a while.

          We’ll be marched into the camps before they give up on pretext.

          1. You have repeatedly said that you’re okay with Trump becuase of judicial appointments and anti-abortion measures. Doesn’t that mean you’ve given up on pretext?

            1. Pretext is something you need when you’re doing the wrong thing, and on some level know it, so you lie about why you’re doing what you’re doing.

              Trump’s judicial appointments were about as good as I could reasonably expect out of a modern Republican President. And at least some abortion is murder. Since those are perfectly defensible reasons for supporting Trump, I have no need to lie.

              1. That’s what I said. It’s just weird that you seem to think you still have principles.

                1. It’s just weird that you think nobody would want good judges and oppose abortion.

                  1. Obviously I don’t think opposing abortion is weird, just wrong, but you and the Republican Party jettisoned so many of the pretexts you used to call principles it’s like the trail of a refugee column that death-marched across a desert. Law and order. Family values. Intellectual seriousness. Honour. National security. I do see you retain one pretext, though, that of the judges being ‘good,’ as opposed to ideologically sound.

                    1. It is kind of a death march, actually. We don’t support Trump because he was an ideal President. We supported him because our idea of an ideal President wasn’t even on the table, hasn’t been for a long, long time, and the alternatives to Trump were all worse.

                      We’re watching our country go away, never to return, and you start doing triage when that happens.

                    2. You’re admitting that you’ve given up trying to work for the country as it is and instead yearning back to a vanished version that probably never existed and willing to damage the country in the process. Tht’s not even Machiavellian, that’s nihilism.

                    3. Triage isn’t nihilism. It’s deciding which valued thing has to be sacrificed to preserve the chance of the rest surviving.

                      The nation I was born in is dying, and we’re trying to save what we can, or at least slow the process down.

                    4. I think it’s more an unwillingness to confront or even acknowledge modern problems, or modern verisons of old problems for which you have no solutions. So mostly you’re slowing down responses to serious problems when you should be offering alternative solutions.

                    5. “We’re watching our country go away, never to return, and you start doing triage when that happens.”

                      In which Brett Bellmore exhibits substantially more self-awareness than a fourth-tier law professor ever does . . .

                    6. The stimulus aka Democrat Party payoff bill shows the country is beyond repair. They now have enough mestizos and other third worlders to outvote us.

                2. Anyway, out of curiousity, what are you thinking judges and abortion are a pretext for? Why did I really support Trump, in your opinion?

                  1. The judges and abortion were the ends. You really supported Trump because you wanted those things (assuming that’s not a retroactive justification and originally it was ‘pwning the libs.’) A crook and a reality show host. It’s like you went looking for the worst version of PT Barnum you could find. No pretext or principle could survive voting for that.

                    1. But then they’re not pretext. Pretext is when you lie about why you’re doing something, not when you are open about why you’re doing it, and have to make unpleasant choices to have a chance of success. (And believe me, at least for me Trump was a very unpleasant choice. Just the least unpleasant one available to me.)

                      If we’d wanted Trump because he was Trump, and judges and abortion were just an excuse to support him, they’d be pretext. As it is, they’re reasons.

                      Personally, I’d have much preferred Rand Paul, but he dropped out of the race before I had a chance to vote for him. I still hold out a bit of hope that he might be VP in 2024.

                    2. But my original point was that you weren’t even bothering with such pretexts anymore. That last voice of conscience. The whole march to the camp thing.

                      But that’s just you. What are we to make of the cult of Trump? Christian fundamentalists treating him as a messiah figure? Qanon treating him as a mighty hero in the battle against global satanic beaby-eating pedophiles? All the Republicans who went along with his lies about the election? Those are some mighty pretexts, if you ask me. All the pretexts and principles you gave up supplanted by these.

                    3. 1) I think there’s more of an anti-cult of Trump on the left, than there is a cult of Trump on the right.

                      2) I’m a traditional Roman Catholic, we tend to not idolize politicians.

                      3) To the extent I’m even paying attention to this QAnon nonsense, I tend to think it’s likely a left-wing psyop designed to make Republicans look stupid. Not like that’s a hard task, the right’s nickname for the GOP is “the Stupid party”.

                      4) Have I ever said Trump was obsessively honest? I just say that the extent that he lies is often exaggerated. Not all his complaints about the election were BS. But some of them certainly were.

                    4. The left hates him, but he’s certainly given more reasons that he should be hated than that he should be loved, or even trusted, or put anywhere near a position of power. The left has more good reason to hate Trump than the right ever had to hate Hilary Clinton.

                      Wasn’t talking about you.

                      You’re fooling yourself. Now there’s a pretext.

                      He said not one true thing about the election. There’s another pretext. Or perhaps ‘illusion’ is the better word.

                    5. Yes, pretext is claiming that your $2 trillion spending orgy is about COVID relief, when it’s really about paying off Democrat Party constituencies and implementing universal basic income.

                    6. Nope. COVID relief. But you keep up the important work of saving Dr Suess from cancellation.

                    7. How is giving states $350 billion when they’ve lost $36 “COVID relief?” How is giving $5,600 to upper middle class families, tax free, who haven’t lost any income because of COVID “COVID relief?”

                    8. It’s finacial relief to people in the middle of a covid pandemic. Can’t always just be giving tax breaks to trillionaires.

                    9. You didn’t answer the question.

                    10. You didn’t understand the answer.

                    11. It was a non-answer.

                    12. Brett Bellmore on QAnon : “I tend to think it’s likely a left-wing psyop designed to make Republicans look stupid”

                      Well, if you’re not into QAnon it’s a wasted opportunity, because the group is made for tin-foil-hat conspiracy freaks like yourself. All of Trump’s failures? Betrayal by backstabbing members of his own party per Brett. The 06 January riots? A false flag operation per Brett. And now we learn QAnon itself is another secret plot by hidden forces.

                      Let’s run an alternate theory by you, Brett : QAnon was started by a hustler looking to scam dupes – and seeing today’s Right as fertile ground. This was very similar to Trump himself: Two conmen working parallel cons on the same turf.

                      Doesn’t my theory pass an Occam-style test better than yours? Who’s behind your nefarious scheme to make the Right look bad anyway? How is it organized? Conspiracy freaks like a hazy and ominous ambiguity. So go specific, Brett: Lay out the details of your QAnon Theory for us.

                    13. “QAnon was started by a hustler looking to scam dupes – and seeing today’s Right as fertile ground.”

                      But, where’s the profit for “Q”? Sure, a lot of people are being scammed, but how is it being monetized? You see the right being scammed routinely by people on the right. National Review and their cruises, the Bulwark and the Lincoln Project, and, yes, even Trump, but the money flow is obvious.

                      How does “Q” monetize the scam? I’m not seeing it.

                      Either “Q” is scamming for the sake of scamming, in which case you’d expect him to be more ecumenical in his targeting, or he has an ideological motive for the scam, which is why I called it a left-wing psyop.

                    14. Lots of Qanon hustlers with patreons and gofundmes. No evidence whatsoever that it’s a ‘left-wing’ psyop rather than a right-wing election anti-Clinton ratfuck that metastasized into a full-blown movement. Came out of 4Chan, not exactly a cosy liberal hangout, but full of pretty much exactly the sort of people that would see Trump as their edgelord king.

              2. You know, I’ve asked myself if I would vote for the liberal equivalent of Trump — a thoroughly incompetent narcissist who drives the country off a cliff — because I would end up with the Supreme Court that I want. And I don’t think I could do that. The massive damage that Trump did to the debt, our international affairs, respect for democratic institutions, his enablement of white supremacists — much as I’d love to have the Warren Court back, I just wouldn’t see that as a good bargain.

                Besides which, I don’t think even with Trump you’re going to get abortion banned, because I think Congress is going to pass a statute for abortion rights nationwide. So you basically sold your soul for nothing. Next time at least try to get a better price for it.

                1. I think a liberal Trump would be some sort of horrible wealthy reinvent-the-wheel techbro disruptor like Elon Musk.

                  1. Nige,
                    As kooky as Musk is, you are grossly unfair to describe him a reinventing the wheel.

                    1. I’ll just feel a lot safer when he’s settled on Mars.

                    2. Nige,
                      My friends call him Felon Musk.

                2. “The massive damage that Trump did to the debt”

                  Congress did that damage, Trump didn’t have the power to do it himself. One bipartisan spending bill after another hit his desk. Passed with veto proof majorities.

                  We’re looking at a $2.3T deficit this year, and that’s assuming no new Covid spending. Slightly smaller than last year, but, again, assuming no new Covid spending; Do you think that’s a safe assumption?

                  “Enablement of white supremacists” is pure fiction.

                  And I’d settle at this point for not being forced to pay for abortions. Looks like the Hyde amendment is facing repeal.

                  1. The massive damage to the debt was largely from Trump’s support of tax cuts for the wealthy, which did not pass with bipartisan support.

                    Do you dispute that Trump enabled white supremacists?

                    1. Federal revenues and spending:

                      2016: $3.27T in, $3.85T out.
                      2017: $3.32T in, $3.98T out.
                      2018: $3.33T in, $4.11T out.
                      2019: $3.46T in, $4.4T out
                      2020: $3.71T in, (Estimated) $6.55T out
                      2021: $3.86T in, (Estimated) $4.8B (WAG) out.

                      As you can see, revenue went up every year, the deficit exploded because SPENDING exploded, not because revenues fell.

                      And, yeah, I deny that Trump enabled white supremacists. I expect you have a pretty odd and/or fictional definition of “enabling” here.

                    2. Brett,
                      Those ~$1T shortfalls actually add up to real money. As I wrote earlier, debt control was a lost cause, certainly by FY16 and probably by FY10.
                      DJT did not help at all. FY 20 and FY21 (the latter number you guess is $4.8T) are largely due to the pandemic.

                      And yet despite Krychek’s plea for higher taxes the only thing we’ve seen so far is making the first $10.5K of unemployment benefits tax free and restoring full SALT deductability (a great benefit for the affluent).

                    3. ‘And, yeah, I deny that Trump enabled white supremacists.’

                      In fairness, Aktenberg78 seems downright discouraged, but maybe he was more chipper while Trump was in office.

                    4. I agree, he didn’t help the situation, but how was he supposed to? He got one bipartisan, veto proof spending bill after another. There wasn’t any politically viable way to stop the growth of the deficit, with that many members of Congress determined to go on a spending binge.

                      What he DID do, was try to push us towards being economically self-sufficient, and an energy exporter. Things which will tend to reduce the severity of the crash when the bill comes due, if there’s anything left of them after the next 4 years.

                    5. Brett Bellmore : “Federal revenues and spending …. (etc)”

                      I’ve been seeing this kind of STUPID since the days of Reagan. The staying power of a truly ignorant argument is absolutely astounding – it’s like kudzu raised to the tenth power : Almost impossible to kill or contain.

                      The last time I checked, federal tax revenues had increased 46 of the last 50 years. They increased when taxes were raised. They increased when taxes were cut. They increase when taxes remained the same. The economy expands; the population grows; revenue increases. The only time this isn’t true is after a major economic shock – then revenue just resets lower and immediately begins to climb again.

                      Which means Brett’s major point is equivalent to saying water is wet. What he doesn’t seem to understand is the real question: How Much Does It Increase? Because – guess what – the same process is happening on the other side of the ledger : Costs are rising.

                      They rise when the scope of government increases. They rise when it is reduced or stays the same. The economy expands; the population grows; costs increase. It’s theoretically possible to have tax cuts that overwhelm the natural growth in revenue or spending cuts than do the same with costs, but in practice you’re altering the rates of increase.

                      Which is why Supply-Side Economics is such a crude fraud.

                    6. I just did some research. A 2% wealth tax on assets over $50 million would generate $3 trillion annually for the treasury, which would almost close the revenue/spending gaps Brett cited in his comment at 10:53. Not gonna hold my breath waiting for it to happen.

                    7. How about a massive, massive, humongous cut to military spending? Just slash the hell out of that shit.

                    8. “I just did some research.”

                      Not good research.

                      Its 3 trillion over 10 years, so 300 billion per year.

                      “About 100,000 American families would be liable for the ultra-millionaire Tax, according to an analysis by economists from the University of California-Berkeley. They also estimated it would generate an estimated $3 trillion in revenue over 10 years without raising taxes on 99.95% of American households, which have a net worth below $50 million. ”

                      https://www.cbsnews.com/news/sen-elizabeth-warren-introduces-ultra-millionaire-tax-act/

                    9. Assume I screwed up the numbers and it’s a mere 300 billion a year rather than 3 trillion. Still, 300 billion would be a big help, and I just can’t work up any tears for people with 50 million in assets having to live on 2% less.

                3. Krychek,
                  Control of the debt was a lost cause in 2016. Even then debt service was so large that there was no way back.
                  Please not that I did not say that DJT didn’t inflate the debt. Or that more than 10% of the increase was due to Covid relief.
                  And now Mr Biden is already increasing the debt to $30 T. By 2024 it will be twice the GDP, worse than Greece.
                  So stopping dreaming about national debt control and hope that the US welcomes 100 million new immigrants who will help pay for it.

                  1. Don, spending is a given. It is politically impossible to cut spending to levels that can be paid for by current taxation. The question is whether we are going to continue to throw it on a credit card, or whether we will raise taxes to pay for it.

                    Like it or not, taxes are going to have to go up, especially on the top 1%. If not, then eventually the credit cards will max out and we’ll be faced with higher taxes AND less services.

                    The problem was Reagan’s idea that you could have good government without having to pay for it. No, you can’t. But the American voter has been spoiled by forty years of not having to pay for it.

                    1. Krychek,
                      The top 1% cannot contribute nearly enough. Political honesty is that every family with an income of any kind more than $50 K will have to see a noticeable tax increase.
                      Until that happens “we’ll be faced with higher taxes AND less services. “

                    2. “The question is whether we are going to continue to throw it on a credit card, or whether we will raise taxes to pay for it.”

                      That’s completely misunderstanding the problem. If we raised taxes enough to cover it, they’d run the same deficit at an even higher level of spending. It’s only the size of the deficit that restrains them at all, and they’re losing the ability to be scared by huge deficits.

                      If Congress had the ability or desire to live within its means, the deficit would have been zero years ago. Until last year’s insanity, spending had only been running a few years ahead of revenues, just not increasing spending as fast would have brought the budget into balance.

                      The reality here is that it’s too late. It was probably too late back in 2008, when they went mad with TARP spending. At this point, avoiding a fiscal crash is basically impossible.

                    3. I agree. Everyone needs a tax increase. That said, the top 1% have benefitted far more from income redistribution than the rest of us have.

                    4. We need to note that in the latest 1.9T extravaganza. The majority of the money is an omnibus pork package rather than explicit covid relief.
                      There is no appetite in either political party for even a semblance of fiscal responsibility

                    5. Without those stymmy checks, how are Shaniqua and DeQuan supposed to buy new sail phones?

                    6. I’m sorry I can’t hear you over the sound of the filthy rich writing off their yachts as tax deductions.

                    7. Most billionaires are Democrats. I’d be thrilled to take away their deductions.

                    8. I love all this back&forth over the impossibility of budget reform, though it makes me feel old. See, I remember when the yearly budget was balanced (see Era, Clinton).

                      Yes, it required an increase to the top rates, but our millionaire class did not become feral animals starving on the streets. Yes, it required broad-based tax increases, but the middle class wasn’t reduced to penury. Yes, it required spending cuts, but the most significant congressional actions were structural measures, like pay-go. And, yes, it require political will which was hard-fought & hard-won. And all that gain was immediately thrown away by the same group who created the debt explosion to begin with : Today’s Right.

                      Promising free stuff is now hard-wired into the DNA of the post-Reagan Right. Every GOP primary season is now dedicated to promises of multi-trillion tax cuts – financed by magic-unicorn pixie-dust supply-side fairy-tales even a small child couldn’t believe. Now, the pattern after Ronnie was the GOP exploded the deficit & then the Dems cleaned-up after the party. That was the case with Obama after Bush, and Trump after Obama. That model is probably broken now. Democrats are tired of being scammed. They wanna live large too.

                    9. “See, I remember when the yearly budget was balanced ”

                      No, technically you remember when they lied about it being balanced. It was a ‘primary’ surplus, one year, which is to say that the budget would have balanced if it weren’t for the need to pay interest on the debt.

                      But, of course, the interest did need to be paid, so the budget wasn’t balanced. Only the government pretends ‘primary’ surpluses mean anything.

                      And all it took was a stock market bubble at the same time that Congress and the President were at each other’s throats, so they were too busy to agree on how to spend the loot.

                      These days Congress is perfectly capable of spending money they don’t have, AND impeaching a President, at the same time. So you won’t be seeing that happen even if we do get another stock market bubble.

                    10. Brett Bellmore : No, technically you remember when they lied about it being balanced

                      Technically, huh? Questions :

                      1. Was the budget deficit calculated differently under Clinton than it is now? If not, do you propose a special different standard to spare you the discomfort of Clinton’s accomplishment?

                      2. Are you certain of your facts (1) ? I google “Clinton didn’t balance the budget” and find a variety of excuses-cum-arguments. “It doesn’t count because Social Security funds were included in the tally” ( a favorite) – or – “It doesn’t count under accrual accounting, where future obligations are included”. What I don’t find is anyone making your argument.

                      3. Are you certain of your facts (2) ? The wiki link below lists the components of Clinton’s balanced 1999 budget. The third-largest item is “net interest”

                      https://en.wikipedia.org/wiki/1999_United_States_federal_budget#:~:text=The%20Budget%20of%20the%20United,for%20October%201998%E2%80%93September%201999.&text=Spending%20was%201.70%20trillion%20dollars,the%20GDP%20

                      (4) Even on the miniscule chance it’s true, is your technicality worth haggling over? All I said above remains true regardless. If it helps, the budget reduction bill signed by GHW Bush was equally responsible for the surpluses as any action by Clinton. The only reason I give him less credit is he returned to promising massive tax cuts next election. Having to appease the Right’s need for free stuff, he couldn’t wait to undo the good he’d done.

                4. You have a lot of nerve talking about Trump’s debt after the Democrat’s $6 trillion spending binge.

                  1. A pox on both their houses.

                    1. Fair enough.

                5. “You know, I’ve asked myself if I would vote for the liberal equivalent of Trump — a thoroughly incompetent narcissist who drives the country off a cliff ”

                  You probably already have. His name is Barak Obama.

                  1. Unlike Trump, Obama left the country in far better shape than he found it.

                    1. No, he didn’t.

                    2. ‘Still has non-white people in it’ doesn’t count as ‘in bad shape,’ though.

              3. Ah, so your problem is that you just don’t know that you’re “doing the wrong thing”. Ignorance is bliss and all that jazz.

                1. It would be nice when you comment on something so far upstream to cite the person and the line that you are commenting about

      2. Brett, I don’t think they are going to courtpack.

        Obama is many things, but stupid is not one of them, and he (et al) realize just how far out they are stretched right now. Take immigration itself — both the Governor of Texas and the head of Greyhound Bus Lines are essentially accusing Biden of murder over the practice of releasing Covid-positive illegals into the interior. (I believe Greyhound is refusing to transport them anymore, and that’d be a very interesting lawsuit…)

        I don’t think they will go that far…

    2. You realize he voted opposite all the liberal justices right? (And all the conservative ones.)

      This is one of the worst takes I’ve read in a while.

      1. Yeah, well, just hit “refresh” and scroll because even dumber takes are coming.

      2. “This is one of the worst takes I’ve read in a while.”

        Welcome, newbie!

    3. “He’s hedging his bets and rolling over to give the atheists whatever they want”

      Do you, and should we, prefer the aspirations of childish, gullible, superstitious, stale-thinking right-wingers, the losers of America’s culture war?

      1. The same old drivel. Mr. Self-plagiarism himself.

    4. Actually, a bunch of atheist activist groups were on the side of the students on this one.

      This appears to be one of those rare moments where Roberts is acting out of actual principle.

  2. ‘The dissent “would place a higher value on Article III” than a dollar. Post, at 1; but see Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 305 (2008) (ROBERTS, C. J., dissenting) (“Article III is worth a dollar”).’

    Does anyone else detect a degree of contempt for Roberts in Thomas’ opinion?

    1. Scalia, Thomas, and Alito joined that dissenting opinion with Roberts.

      It’s not contempt… its a reminder: Alito and Thomas agreed with Roberts then, but not now. At least two of them think Article III is worth “at least” a dollar.

  3. Bye, Felicia.

    No love lost here for Roberts.

    Can’t say I have been persuaded by any of his dissents. I have not even been that persuaded by his majority opinions, lol.

    But… if you are the lone dissenter in an 8-1 opinion written by Thomas, I think that you should search Amazon for a next day delivery of a clue (they have everything). I mean, when the liberals agree with Thomas and no one agrees with you, you are way out in space.

    1. He went absurdly out on a limb to justify some of his decisions, adopting reasoning nobody else took seriously. Once you do that sort of thing, backing down involves admitting you weren’t just wrong, but being unreasonable.

      It’s hard to avoid doubling down under those circumstances.

    2. Roberts is a despicable piece of shit. I hope he gets a tumor.

    3. Makes you really wonder what Kagan would have written had she done the opinion.

      My guess — just a guess — is that the left views this like racial discrimination which they don’t want mooted in this manner.

  4. At the end of the day, this opinion puts some teeth in the courts voluntary cessation doctrine. Prior to this opinion, government or institutions could trample on your rights (abortion, first or 2nd amendment, amendment, marriage…), then stop the policy after you sue, leaving you with nothing but a big legal bill – a game of whack-a-mole. It’s not any protection at all, because who can afford a big legal bill against a government or institution that will fight right up to the cert petition, then change the policy. Today its a guy who wants to pass out religious material, tomorrow its a girl who wants to film police brutality. It sure could lead to more lawsuits, everyone will ask for nominal damages… but the best way for institutions to avoid lawsuits is to go out of their way to avoid trampling on rights.

    1. Finally someone addresses what was on my mind.

      I am aware of what you say, but I don’t understand legally why courts get away with that. It is established law that you cannot avoid an injunction against wrongful conduct merely by voluntarily ceasing it.

      It is well settled that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite, 455 U.S., at 289. “[I]f it did, the courts would be compelled to leave ‘[t]he defendant … free to return to his old ways.’ ” Id., at 289, n. 10 (citing United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)). In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968). The “heavy burden of persua[ding]” the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. Ibid.

      FRIENDS OF EARTH, INC. V. LAIDLAW ENVI-RONMENTAL SERVICES (TOC), INC. , 528 U.S. 167 (2000)

      In light of that, I have a hard time seeing how this case became moot. The plaintiff wanted an injunction. The unconstitutional actions clearly were school policy, not just a dumb mistake by campus police. Were I the plaintiff, I would say, very nice you stopped, but I want an injunction so you don’t return to your bad ways.

      1. The rules are different for state actors, that’s what it comes down to.

        1. I believe that is correct. But I fail to see why. Maybe that is where the real reform needs to be, not letting plaintiffs sue for a dollar.

          1. My uninformed belief is that the 11th amendment is the source of a lot of this back and forth and should simply be done away with.

            Like I dont really have a problem with standing doctrine? But once you prove cause in fact, then you have to go through this rigamarole where you are barred from getting certain forms of relief, but can get others, but then the state can make changes to moot those things, and … its all rather dumb, in my view anyhow. Again completely uninformed.

            I mean the only issue with that is that if the constitutional regime changes, like in Obergefell, you shouldn’t be able to sue the state for actual significant damages for violating a right that, despite the courts claim otherwise, didn’t exist before the case was decided. In those cases injunctive relief is far more appropriate. There ought to be some way of devising a rule that forecloses that.

            The current regime doesn’t appear to be it.

          2. The “why” is because the courts are part of the government. There’s no higher reason.

          3. Congress abolished the statutory amount-in-controversy requirement for federal-question jurisdiction in 1980…

            Seems to me the reform happened.

            I do not think that the “courts” were getting away with anything. Courts tend to be extremely deferential to the government and major institutions, for a lot of reasons. So if they go into court with “honestly judge I’ve changed my ways” the courts tend to believe it.

            Moreover, states have effectively unlimited resources and only 70 of 10,000 cases a year make it to the Supreme Court. They have every incentive to fight it all the way. Last year a major case almost got mooted (County of Maui v. Hawaii Wildlife Fund, https://en.wikipedia.org/wiki/County_of_Maui_v._Hawaii_Wildlife_Fund – a lot of groups got cold feet when the court granted cert).

            As was pointed out at oral arguments, this decision is mostly about legal bills. Now, its a lot less likely people who sue will be saddled with a huge legal bill despite being the de facto prevailing party.

      2. The thing to remember about higher education is that they can ignore *this* student if they have to, or “get” him later for something else (think HAS’s “3 Felonies a Day” writ large) — the real issue involves the high school kids who haven’t even been admitted to the university yet…

  5. “Going forward, as the Court shifts to Roberts’s right, I think we will see more and more solo Roberts dissents.”

    Perhaps, but only until better Americans enlarge the Supreme Court despite the desperate whimpers of clingers.

    1. Don’t know if you noticed, but this one was 8-1 against him, and included Democratic president nominees. You can hardly call Kagan or Sotamayor a flaming right winger. (Well, you could, but no rational person could.)

  6. With respect, I find Prof. B.’s analysis to be a bit lacking, both quantitatively and qualitatively.

    On the former aspect, I don’t view 7 Rehnquist solos as being “far more” than 4 for Roberts. That seems like a stretch. To me, “far more” would have to be at least the low double digits (for Rehnquist, of course). Also, in any event, it’s not really an apples-to-apples comparison. That’s because it disregards the timespans in question. So far, Roberts has only been CJ for about 15 years, but Rehnquist was CJ for roughly double that—around 30 years.

    On the latter aspect, the comparison ignores something too—the relevant context. Although it nods to the ideological shift accompanying Roberts’s solos, it doesn’t account for a similar phenomenon in Rehnquist’s case. In particular, the initial flurry of 4 Rehnquist solos happened very close in time to a fairly major change in SCOTUS composition. Namely, Souter (1990) and Thomas (1991) replaced Brennan and Marshall, respectively. (Say what you will about Souter, but nobody can deny that he’s not as left as Brennan was.) Of course, Rehnquist’s flurry came before the shift, whereas Robert’s was after. But that’s because in the former case the Court moved toward Rehnquist, while in the latter it moved away from Roberts.

    Finally, I’m not sure why it’s so notable for Roberts to cite the Jay letters here and in Campbell-Ewald, or why it means Roberts has a yen for citing the letters. It’s quite understandable that he would cite them, given that both cases addressed similar issues concerning advisory opinions—and in fact in this case he also cites Campbell-Ewald itself. Has Roberts shown a tendency to cite the Jay letters gratuitously even when they’re not especially relevant? If so, that might actually be noteworthy.

    1. I agree with much of what you say, except that Rehnquist was CJ for only 19 years; he was on the court for ~30 (33) years.

      1. Thanks for pointing that out. Sometimes I need remedial math instruction and this was one of them. Like Muphry’s Law, there should be a more general expression for any kind of flaw in a comment identifying any kind of error in the original post.

        That said, I stand by all my previous analysis. It might also be interesting to see a more fulsome study of how all former CJs have done with solo dissents.

  7. “the other departments would be swallowed up by the judiciary.”

    As happened because of Marshall’s power grab in Marbury. not because of liberal standing rules.

  8. “The Chief is nothing if not predictable.”

    Perhaps the word you were searching for here is “principled.”

    1. The principle he follows is: don’t do anything that he thinks makes the Court look controversial. If that means contorting the Constitution, so be it. And it is also a self-defeating principle.

  9. Cue George Thorogood:

    I write alone
    With nobody else
    You know when I write alone
    I prefer to be by myself

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