The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, the Supreme Court issued its order list. Chief Justice Roberts wrote a statement respecting the denial of certiorari in Massachusetts Lobstermen's Association v. Raimondo. By my count, Roberts had issued statements respecting the denial of certiorari three times before:
- Marek v. Lane (2013).
- North Carolina v. NC State Conference of NAACP (2017).
- Abbott v. Veasey (2017).
In the Lobstermen statement, Chief Justice Roberts referred to President Obama by name. Not, "the President," but "President Obama."
The creation of a national monument is of no small consequence. As part of managing the Northeast Canyons and Seamounts Marine National Monument, for example, President Obama banned almost all commercial fishing in the area with a complete ban to follow within seven years.Presidential Proclamation No. 9496, 3 CFR 262, 266–267 (2016).
Here, Roberts was criticizing Obama's action. He could have just as easily said "the President," but by saying President Obama, the Chief personalized the criticism. Later in the paragraph, Roberts observed that the restrictions were lifted. But he didn't mention which President lifted it! (His name was Trump):
Although the restrictions were lifted during this litigation, Presidential Proclamation No. 10049, 85 Fed. Reg. 35793 (2020), that decision is set to be reconsidered and the ban may be reinstated, Exec. Order No. 13990, 86 Fed. Reg. 7037, 7039 (2021).
Indeed, the citation to the 2021 order is directed at the current President. But President Biden was not mentioned by name. Only President Obama.
I searched the Supreme Court database on Westlaw. I could only find three majority opinions that referred to a specific act taken by "President Obama": Trump v. Hawaii, Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, and Barr v. AAPC. And a few separate writings referred to a specific act taken by President Obama: DHS v. Regents (Thomas, J.), NLRB v. Noel Canning (Scalia, J.), Ortiz v. U.S. (Alito, J.), Department of Commerce v. NY (Thomas, J.).
In 2019, I criticized Justice Kavanaugh for referring to Presidents by name. (He did so again in AAPC). Roberts seems to have joined the club. I'm sure at some point, the Chief will direct some ire at the twice-impeached "President Trump."