The Volokh Conspiracy
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Chief Justice Roberts's Long, Longer, and Longest Games
From Trump to Biden, from Citizens United to Dobbs, from Roe to Casey.
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.
