The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Roberts Can Still Write


My criticism of the Chief Justice is virtually unflagging, but I must give credit where it's due: Roberts is still the strongest writer on the Court. Look no further than his self-assigned majority opinion in FEC v. Cruz.

A paragraph on page 7 begins:

These arguments have an Alice in Wonderland air about them, with the Government arguing that appellees would not violate the statute by repaying Cruz, and the appellees arguing that they would. But this case has unfolded in an unusual way. 

Three paragraphs later, on the bottom of page 8, Roberts pays off the Alice reference:

But we need not go further down this rabbit hole.


The best standup routines will often include a joke at the beginning that establishes a theme. The comic will revisit that theme throughout the set. And then, for the very last line, he will come back to the opining theme to a standing ovation. This sort of delivery requires skill, patience, and craft.

Today, judges often attempt humor with one-liners and zingers that are over as soon as they begin. These barbs seldom leave a mark but often miss the mark. In Cruz, the Chief plants the seed, builds up to it, then pays it off subtly. You know some thought went into this argument. Well done. (One of the reasons why I am so hard on Roberts's jurisprudential sophistry is because I know he knows better.)

Then, from rabbit holes to mouse holes, we get this line from Justice Gorsuch's dissent in Patel v. Garland:

Often this Court rejects as implausible statutory interpretations that seek to squeeze elephants into mouse holes. See, e.g., Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). Today's interpretation seeks to cram a veritable legislative zoo into one clause of one subparagraph of one subsection of our Nation's vast immigration laws.

Unsolicited advice for West Virginia v. EPA: retire all future analogies about mouse holes. Justice Scalia penned a classic line twenty years ago. Now we're just beating a dead elephant.

Finally, Justice Kagan's dissent in FEC v. Cruz missed an obvious, and inappropriate joke:

By contrast, when a campaign uses a donation to repay the candidate's loan, every dollar given goes straight into the candidate's pocket. With each such contribution, his assets increase; he can now buy a car or make tuition payments or join a country club—all with his donors' dollars.

Cruz could have bought a return plane ticket from Cancun!