Chief Justice Roberts's Long, Longer, and Longest Games

From Trump to Biden, from Citizens United to Dobbs, from Roe to Casey.

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It is said that Chief Justice Roberts has a "long game." I think this label is imprecise. He has a long game, a longer game, and the longest game.

The Long Game

During the Trump Administration, Chief Justice Roberts wrote several decisions that (in my view) radically expanded a court's power to set aside agency action as arbitrary and capricious. The DACA and Census cases empowered the judiciary to second-guess every facet of the executive-branch's decision. In hindsight, a judge can simply ask, "Why didn't you address the costs and benefits of X?" And if a trial judge makes that finding, appellate courts are then obliged to defer. These rulings handcuffed the Trump Administration, and prevented it from undoing Obama-era policies.

At the time, I speculated that DHS v. Regents was a byproduct of #TrumpLaw, and would not survive the next administration:

I sincerely hope this case is a ticket good for one ride on the John Roberts express. This framework, if taken seriously–which I do not–would make it impossible for any agency to modify an old policy that is in effect. There will always be countless ways to address reliance interests. My prediction: the DACA case will soon be treated like the APA analysis in the Census case. Another blip in administrative law that was only needed for the moment.

Once again, I was wrong. (By now, you should really ignore all of my predictions; my track record is dismal). On Tuesday evening, the Court declined to disturb a district injunction that blocked the Biden Administration from undoing the Trump Administration's "Remain in Mexico" policy. (Sorry, that sentence was a mouthful). Justices Breyer, Kagan, and Sotomayor noted their dissents. It is safe to assume the Court's six conservatives agreed with the shadow docket ruling. The Court issued a few sentences of reasoning, which is actually a lot for the shadow docket:

The application for a stay presented to Justice Alito and by him referred to the Court is denied. The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. See Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020) (slip op., at 9-12, 17-26). Our order denying the Government's request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.

The Court is signaling, loud and clear, that the rescission of policy is likely arbitrary and capricious. And the order cites specific pages from Regents: pages 9-12 , and 17-26. The Court is providing the lower courts with the pincites needed to halt any reversal in policy. And the Court seems to endorse the Fifth Circuit's analysis (a per curiam opinion by Judges Elrod, Oldham and Wilson).

Part III-B of Regents begins on p. 17. And here is the key analysis:

Instead we focus our attention on respondents' third argument—that Acting Secretary Duke "failed to consider . . . important aspect[s] of the problem" before her. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). . . .

But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General's legal reasoning left off.

If only Secretary Duke had in mind exactly what was on Chief Justice Robert's mind. If only. During Blue June, liberals celebrated the Chief for saving DACA. The immigration bar was ebullient. The Court's progressives were all too happy to join. But not now. This long game paid off in only fourteen months. And it will be around for a while. A short term defeat for a Republican president spells a long term check on Democratic presidents. Like some ghoul in a late night horror movie, Regents will haunt progressives for years to come.

On Friday, I asked if the Court would allow immigrants to remain in Mexico, but tenants must vacate their apartments. After Tuesday's order, Biden is on very shaky ground for the eviction moratorium.

The Chief Justice's solo concurrence in South Bay became a "superprecedent." I doubt this order will have the same effect for all judges. But it gives the lower courts a green light to apply the DACA/Census form of super-duper hard look review in any case that unwinds an old agency action. Chief Justice Roberts has placed President Biden in a pair of cement-filled shoes. He can go nowhere but down.

The Longer Game

The journey from Regents to Remain in Mexico took barely fourteen months. But other journeys have taken longer. Flash back to January 2010 when the Court decided Citizens United v. FEC.

Chief Justice Roberts wrote a 10-page concurrence that explained his perspectives on stare decisis. I wrote about the concurrence at the time, but to be frank, I don't think I've read the opinion since. Yesterday, Ed Whelan wrote a comprehensive post that applied Roberts's framework from Citizens United concurrence to Dobbs. I encourage you to read the entire piece. When revisiting Roberts's separate writing in hindsight, it was unmistakably about Roe.

First, before Citizens United, no party had asked the Court to overrule Austin. But now that Citizens United asked to overrule Austin, the issue was squarely before the Court. And, Roberts explains, because no party had asked to overrule Austin, decisions applying it did not actually "reaffirm" the precedent.

Since Casey, no party has asked the Court to overrule Roe. Thus, in Roberts's view, Casey has never been "reaffirmed." Stated differently, Whole Woman's Health did not reaffirm Casey. And in June Medical, the parties did not ask the Court to overrule Whole Woman's Health or Casey. Roberts's June Medical concurrence, then, was consistent with his Citizens United concurrence a decade ago.

Second, Roberts explains that rewriting a precedent to save it is inconsistent with stare decisis. (I'll resist any Obamacare jokes here). He explains:

Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones.

A common hope on the left–most recently articulated by Noah Feldman–is "mend it, don't end it." In other words, tighten up the undue burden standard a bit, but leave the framework in place. For reasons Sherif Girgis articulated, this half-loaf approach won't work for Casey. The Court could not merely preserve Casey, but would be forced to transform it. In Citizens United, Roberts rejected this transformational approach to stare decisis. This passage, circa 2010, may be coming soon to Dobbs majority opinion:

[The dissent's flawed understanding of stare decisis] would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court's past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.

The rest of Ed's post is worth a close read. But these two premises, if adhered to, provide all the groundwork that is necessary to overrule Casey.

Roberts wrote the Citizens United concurrence more than a decade ago, almost certainly with Roe in his cross-hairs. He could not have fathomed all that would occur in the 2010s. Indeed, had President Clinton won the election, Roberts would have been in dissent for the rest of his career. But Roberts's strategery goes back even further than the Obama Presidency.

The Longest Game

During his confirmation hearing, Justice Thomas was asked by Senator Leahy if he had discussed Roe v. Wade while he was at Yale Law School. Thomas replied, "Senator, I cannot remember personally engaging in those discussions." I think it safe to say that John Roberts could not have answered the question the same way. Roe v .Wade was vigorously opposed by the Reagan and H.W. Bush Administrations, in which Roberts served. Moreover, Roberts was the principal deputy solicitor general when Ken Starr argued Casey in 1992. Roberts has views on Roe and Casey that long predate his appointment to the Supreme Court. His views on Roe may be more well-formed than his views on affirmative action and the Voting Rights Act.

In Janus, Justice Kagan derided Justice Alito's "6-year campaign to reverse Abood." Six years? Hold John's beer. The Chief is on a half-century long rendezvous with Roe. The analogies to literature are legion. Roberts is Inspector Javert and Roe is Jean Valjean. Roberts is Captain Ahab and Roe is Moby Dick. Roberts is the Count of Monte Cristo, and Roe were his betrayers. And so on. Then again,  Javert and Ahab did not have happy endings. The longest game, though, may still be worth it for the Chief.

NEXT: Nirvana's "Nevermind" Baby Sues Over Cover Image

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  1. “The Court is signaling, loud and clear, that the rescission of policy is likely arbitrary and capricious.”

    The rescission of policy without giving significant reasoning or justification. Policies can be reversed, but the reversal must be reasoned and justified, not arbitrary.

    1. Reason and justified doesn’t actually mean anything. Judges have opinions and if they feel strongly enough, they’ll claim any and all reasons and justifications are not good enough to meet that standard.

      1. I’ll grant you that, as a matter of practical application. But the Court still is NOT signaling that just any rescission of policy is going to be struck down.

        1. Josh says, “Once again, I was wrong. (By now, you should really ignore all of my predictions; my track record is dismal).”

          The simple explanation is that the decisions come from bias, feelings, moods of the moment, self interest calculations, the guy’s wife yelling at him today. Some study showed lighter sentences after judges ate a sandwich, hanger is a factor. The biggest bias favors big government/lawyer rent seeking. So one can somewhat predict appellate decisions with those two most powerful factors. The rest is mind reading of people who are dumbasses.

          The legislature must write an algorithm applying its laws, to be updated yearly. If it hurts people unlawfully, the legislature should compensate them for damages under product liability.

      2. So we’ll descend into Hawaiian Judge ‘Orange Man Bad’ and Texas Judge ‘Kiddie Sniffer Bad’ opinions.

        Oh, Joy. ‘Twas a good run while it lasted. RIP USA.

      3. Yes, we know

        We say that for 4 years under Trump.

        We warned the Left at the time that that was a bad idea. They did it anyway

        So now they get the same done to them. It’s called “justice”

    2. There appears to be a John Roberts in the Epstein flight logs. If John Roberts is being extorted – that would explain many of his decisions.

  2. The arbitrary and capricious ruling is a good idea if actually enforced (and shame on anyone who actually wanted that ruling to not be applied to anyone not Trump). The way executive power is currently interpreted the executive can invalidate any law by simply ordering his people not to enforce it in any manner with a reasonable chance of success. That said a better legal reasoning would be to invalidate any law that gives the executive leeway to essentially write law.

  3. “But it gives the lower courts a green light to apply the DACA/Census form of super-duper hard look review in any case that unwinds an old agency action”

    As in: any of the changes that the ATF is proposing. ATF is on ultra thin ice here.

    1. Certainly if there’s going to be real teeth to the new rule. I don’t think anybody honestly expected that bump stock rule change to survive review, but after it did the Biden administration wasn’t shy about exploiting their apparent freedom to adopt ‘interpretations’ of existing laws that were flat out crazy.

      1. I am not sure it “survived review” so much as the SC declined to wade into the debate on this particular issue. They will pick a much juicer case to take on ambiguous ATF lawmaking.

        1. It certainly survived review further down the food chain, and the Court had the opportunity to take the case, and turned it down.

          And it’s pretty “juicy” when an agency changes the ‘interpretation’ of a law to render a few hundred thousand people felons if they don’t destroy their own lawfully acquired property without compensation. Especially if the ‘interpretation’ was something they’d routinely rejected before because it was flatly contrary to the text of the law.

          No, make no mistake, if a regulatory agency had done that with an obscure model of printer, or anything else that implicated a civil right besides the RKBA, the Supreme court would have been all over it.

          1. SC rejects 99.9% of cert petitions. Sadly, not every dumb thing that the ATF does is cert worthy.

            1. 99% of cert petitions are probably Hail Mary passes appealing convictions. The problem is that they also reject most cert petitions that raise serious constitutional issues, especially if they have anything to do with guns. The number of circuit splits they’re leaving alone these days is appalling.

              Their rate of taking cases has been declining for decades.

              1. “Their rate of taking cases has been declining for decades.”

                duh. since 1869 … more people (about 8x what we had in 1869)… more laws… same number of justices .

                So yeah, the rate of taking cases is going to decline, even if they take the same 70 cases per year. Personally I think this whole taking-the-summer off is archaic, but even if they took 33% more cases, I doubt it would make much difference.

                Outside of increasing the number of justices, the law profession is exceptionally resistant to productivity changes. I can only lolz that the court is reverting to paper. The shadow docket has been doing a lot of work without tying up the court with oral arguments, issuing very narrow rulings that do a lot of heavy lifting. They could do a lot more with the shadow docket.

                1. “So yeah, the rate of taking cases is going to decline, even if they take the same 70 cases per year.”

                  No, not the percentage of cases. The NUMBER of cases has been declining. The number of cases they took each year started dropping off a cliff in the mid 80’s. It’s gone from a high of about 150 a year, to the 60’s-70’s.

                  1. If it’s any consolation, the individual opinions have gotten more and more verbose, and generally read more like law review articles than like opinions from any other court I know.

  4. We are getting some sort of written opinion in the CDC moratorium case for sure.

  5. (By now, you should really ignore all of my predictions; my track record is dismal)

    You got it, boss!

    1. I was way ahead of him there.

    2. To be fair, Blackman’s prediction record is still better than Ed’s.

      1. Talking about setting a low bar, that is the lowest.

  6. This is of course distinguished from Blackman himself, who has no game.

    1. I think his game is to garner enough attention at this site to attract the attention of a third-tier law school and thereby get a promotion.

    2. While I agree that Blackman’s got no lawyerly or scholarly game, I disagree that he has no long game career wise. His whole raison d’etre is to espouse, for every issue, the view that a Trump-like republican president would agree with. And that’s how you become a district judge. He’s so committed to the shtick that I can basically predict his views on anything and everything.

      The advice I consistently give to 1Ls (and only somewhat facetiously)- become a republican, and make sure everything you do in your career furthers the party. There’s way less competition for way more positions than on the other side, and Republicans take care of their ideologues more readily than their competents. So I’ll eat my hat if Blackman’s not a district judge within the next 10-15 years.

  7. I’m torn between if Roberts is an evil genius playing 4-D chess or just another inside the beltway DC chump doing what he thinks the political winds of the day favor. Lately I’ve been leaning toward the later, but there are shades of the other which appear from time to time.

    1. Jimmy! Where’s trump? August is almost up my friend. And what about your Arizona audit? It was mere weeks ago you were predicting big things!

      1. You are confusing me with another commenter. I never “predicted” Trump or anything definitive. All I said was that it looked like maybe there was some was evidence of election tampering and if that was true it would present one hell of a constitutional crisis. I never said Trump would be installed as President.

        1. Naw, it was you. Nice try though.

  8. Josh Blackman’s predictions about the Supreme Court may be “dismal,” but his literary allusions about Chief Justice Roberts are on target.

    And hilarious.

  9. Professor Blackman,

    i would tend to agree with your modest self-assessment that you have been wrong a number of thimes in the past.

    But you just might be right on this one.

  10. The Obama White House wrote law to create DACA (and said they were doing so explicitly), and the Court sees no evil. The Trump White House renounces DACA, and the Court spanks them. Hmmm …

    If DACA was a legitimate act of the executive branch, then certainly Trump could undo it. If DACA was legislation, then Trump couldn’t touch it. So where to the Bidenites stand?

  11. “This long game paid off in only took fourteen months” and “If President Clinton had won the election”?

    Fire your proofreader.

  12. Pretty sure the Chief Justice is sort of muddling along, and when viewed holistically, it can be made to seem like some sort of master plan underway if you squint hard enough.

  13. The longer we wait for an opinion/order, the worse it gets for the CDC.

    And, I think this shadow docket entry will end up having big implications for other agency action as well. The Biden admin, at Tribe’s behest, thumbed their nose at the Supreme Court and the longer we go without seeing the order the more I think CDC is getting is with both barrels.

  14. Or maybe, just maybe, Chief Justice Roberts is deciding each case on the merits the best he can.

  15. “…A short term defeat for a Republican president spells a long term check on Democratic presidents. Like some ghoul in a late night horror movie, Regents will haunt progressives for years to come….”

    Didn’t understand this. Why will this be a long-term check only on future Dem presidents? Why not also true for future Republican presidents??? Why will Regents haunt only progressives for years to come, and not conservatives (regressives??)?

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