The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We've been told that Chief Justice Roberts is playing the long game. For the past two decades, he has been carefully moving pieces on a three-dimensional chess board. Indeed, Roberts has been setting the stage for this long-game since the Reagan administration. And, the crowning achievement of this plan–the White Whale!–would be overruling Roe v. Wade. Or so the story goes.
But in the interim, things did not go to plan. Justice Scalia suddenly died, and we almost had Justice Garland. But Senate Republicans refused to give him a hearing, Trump won, and we got Justice Gorsuch. Justice Kennedy retired, and we got Justice Kavanaugh. Then, Justice Ginsburg suddenly died, and we got Justice Barrett.
Tell me, can any "long game" possibly plan for all these eventualities? In 2017, I wrote that Roberts's "long game" suffers from what Hayek described as the "fatal conceit."
Fisher and Harris illustrate the fundamental problem with a long game. The notion that a single Chief Justice can single-handedly shape the law over the course of decades, as if he were moving pieces around on a three-dimensional chess set, suffers from what F.A. Hayek referred to as the "fatal conceit." Our society as a whole is infinitely more complex than any one person could ever possibly understand. It is the "fatal conceit" of central planners that they presuppose enough knowledge to control all aspects of human existence.
And Leakgate illustrates once again the problem with treating the Supreme Court like some chess match. No one–not even John Roberts–is omniscient enough to steward the Court as if it were a role-playing game. Indeed, I think many of the Court's current problems, including the leak, stem from Roberts's blatant attempt to rest his rulings on political currents. NFIB v. Sebelius established the playbook. It is not surprising that someone, no matter how poorly informed, though it would be a good idea to leak this draft.