The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.