Chief Justice Roberts Is Not A "Weather Vain." He's Just So Vain.

He probably thinks the Court is about him.

Chief Justice Roberts has evolved over the years. There was a time when he could be viewed as an "institutionalist." In 2017, I analogized Roberts to a bank--depositing and withdrawing capital to advance the conservative "long game."

The institutional theory views the Court as something like a checkbook: the Court can take a big withdrawal once in a while, so long it makes regular deposits. Indeed, Roberts has adopted such a fiduciary approach to judging. Back in 2007, he viewed the Court's three-decade-long pattern of divisive 5-4 decisions as "eroding, to some extent, the capital that [Chief Justice] Marshall built up." Thus, decisions can fall on either side of the ledger: deposits or withdrawals. By depositing "capital" in the narrow decisions—such as WRTL v. FEC, NAMUDNO v. Holder, NFIB v. Sebelius, and King v. Burwell —the Court can withdraw that "capital" in the broad decisions like Citizens United v. FEC, Shelby County v. Holder, and cases yet to come.

But after Trump, Roberts's "long game" was turned upside down, and post-Dobbs, the long game is long gone.

If he is no longer an "institutionalist," what is he?  In the Washington Post, Jennifer Rubin offers this description of Chief Justice Roberts.

If political opinion "tester" explains Roberts's past compromises and the shift from Shelby to Milligan, he should be viewed not so much as an institutionalist (who would protect the jurisprudential integrity of the court and insist on abiding by the highest ethical standards) but as an unprincipled politician, trying to prevent his radical colleagues from sinking the court and the Republican Party when he suspects blowback to decisions from the court's right-wing majority.

In that sense, Roberts has become the worst sort of results-oriented judge. Rather than legal consistency, respect for precedent or even a judicial philosophy, he's become the quintessential weather vane. How much can the public tolerate? How far must he let his conservative colleagues drift before the court falls into political oblivion?

I don't quite agree. Chief Justice Roberts sees himself as the Court's savior--the only force that can protect the legacy of John Marshall. John Roberts, and no one else, knows what is best for the Republic. John Roberts, singlehandedly, can ward off incursions from the radical left Court "reformers" and the radical right (including his colleagues). Of course, this is all a figment of Roberts's imagination. Delusions of grandeur, really. He can barely keep his own Court in line. Joan Biskupic's reporting suggests that even his colleagues are annoyed at how much Roberts seems himself as in control.

I don't think Roberts is a weather vane. I think he's just, so, vain. He probably thinks the Court is about him.

Comments

[Rev. Arthur L. Kirkland]

John Roberts has delusions of grandeur.

Josh Blackman has delusions of adequacy.

Carry on, clingers.

[Frank Drackman]

You know you think this blog is about you,
it isn't,
"Jerry"

Frank

[MeanGene]

When are you going to go back to being a clever troll, Artie?

[MatthewSlyfield]

He can't go back to being something he never was.

[MeanGene]

Good point.

[Bill Falcon]

Jennifer Neocon Rubin? JC really? She is a war monger globalist..perfect for the Wapo to say she is a conservative.

[Just Eric]

Trying too hard on this one.

[Martinned]

Against stiff competition, this may well be the least self-aware post that Josh has ever written.

[Dan Schiavetta]

well put

[SamIamnot]

Amen.

[Rev. Arthur L. Kirkland]

Joan Biskupic's reporting suggests that even his colleagues are annoyed at how much Roberts seems himself as in control.

If that is a sentence is it not a good one.

[Dr. Ed 2]

"Sees."

[Gandydancer]

"If that is a sentence is it not a good one."

Not as bad as yours, Artie.

[Rev. Arthur L. Kirkland]

What was wrong with my sentence, clinger?

[WillDD]

I would generally be disinclined to waste even a moment's thought on Jennifer Rubin, but I think it's possible to view Chief Justice Roberts as believing his position as first among equals does require him to, at least at times, to assume the role of the Court's savior (even if that is more than a little overstated). Even Rehnquist seemed to have done the same when he became Chief Justice. I don't think that's necessarily a bad thing and, indeed, I think Roberts was a much more logical choice for that role than Rehnquist. I don't think Roberts was ever as strident as the likes of Alito or Sotomayor even before he became Chief Justice.

[ChrisC]

Jennifer Rubin is an idiot. Otherwise, nice article.

[Martinned]

Good point. I might be that he mellowed with age, but I think there's decent evidence that Rehnquist was more conciliatory when he was chief.

[Drewski]

This turned out to be a useful little missive. I wasn't familiar with Jennifer Ruben and it appears that she is an insightful, gifted writer. I already knew Josh is. . . the way he is so the rest of the post is pretty bland gruel.

[Bob from Ohio]

" I wasn’t familiar with Jennifer Ruben and it appears that she is an insightful, gifted writer"

Jennifer Ruben might be "insightful, gifted", Jennifer Rubin is not.

She was hired by WaPo to be the in-house pet conservative but couldn't even stick to her role. Just another Resistance!!! hysteric.

[Rev. Arthur L. Kirkland]

Stick with Gary Abernathy, one of the Post's "clinger whisperers" (downscale Republicans hired to try to persuade a reasoning, modern, educated readership to be more understanding with respect to conservatives' archaic, intolerant, superstitious thinking) . . . he's a fellow never-was-been from Backwater, Ohio.

[Frank Drackman]

Get Jerry Sandusky ridiculing someones background, once a Predator, always a Predator.

[Drewski]

Your dislike of her is the same thing as a glowing recommendation to me, Bobby.

[ReaderY]

How much are they paying you to spout off this stuff?

Look, anyone can just walk in off the street and accuse someone who doesn’t do what you want him to do of being unprincipled, dishonest, what have you. You don’t have to go to law school to do that. You pretty much don’t need more than a high school education to do a screed job on somebody, maybe a little college if you want to garnish the bovine ordure with some fancy words every now and then.

This is an argument? This isn’t any collective series of facts intended to establish a definite proposition. This isn’t even contradiction. Look, someone who talks like this just doesn’t belong working in an argument clinic.

Have you considered applying to your university’s complaints department? Abuse department? Getting hit on the head lessons department? These would seem more your style and more in alignment with your professional aptitude.

[hobie]

Nice post. Blackman's hackles always rise when a perceived court ally bucks the sedition party/Federalist stricture and throws a modicum of justice to the gays (Gorsuch) or blacks (Roberts)

[a.heroic.dose]

Lol did the chief fuck your mom or something? Let it go, kid.

[Magister]

It seems clear that Roberts has always wanted to deliver reliable advantage to the Republican party (e.g., in voting rights cases and upholding gerrymanders; the expanded power of money in politics), but also to preserve John Roberts' place in history (telling fibs about balls and strikes, judges and justices being non-political, avoiding extreme positions that will rile up his political opponents), and lately to preserve power in the Supreme Court by not provoking a political response (the recent Alabama redistricting decision, his attempts to water down the Dobbs outcome). He would like to boil the frog with small incremental changes rather than sweeping decisions that fire up political opponents as Dobbs did. Sufficiently provoked, enough Democrats will be elected who view court expansion as reasonable. If he can hold that to two more justices (justified as Gorsuch or Barrett being a stolen seat - should have been 1-1 but was 0-2, so appointing two justices would make it 2-2) then he is the swing vote again between progressive and conservative justices. If the conservatives push far enough, then they might get four more justices and he loses any control.

Roberts still has the same agenda as before. Rubin's take gives too much credit to Roberts for earlier faux institutionalist behavior, but is accurate regarding his current conduct.

[JasonT20]

This all sounds about right to me. Both the strident left and strident right in this country tend to forget that they each separately well short of a majority of the electorate. When one of those sides tries to govern as if they have a mandate to implement exactly what their most fervent voters want, they eventually learn that it backfires on them in the longer run. The most obvious effect is that it energizes the opposition.*

But just as important is how it affects voters closer the middle. Few voters that aren't highly partisan pay nearly as much attention to politics as we junkies here do. And turnout among those voters is usually quite a bit lower than for the true believers of the left and right. When a party governs completely in line with its fervent base, their controversial policies break through other media noise and those middle voters notice. They might then be more motivated to vote and side with the opposition in order to push the government back toward the middle.

An unfortunate fact of how most democratic countries work is that the most passionate and vocal voters hold more sway than others. It breaks the one person, one vote principle of how representative government is supposed to work. The counter argument is naturally going to be that this is a feature, not a bug. Passion and conviction should matter, the argument might go. The downside to that is how people tend to get more irrational the stronger their emotions get around politics.

*Personally, I think that Obama's policies in the first year of his administration were solidly center-left rather than the radical left turn that the Tea Party movement made them out to be. But it was that Democrats used their control of Congress and the White House without much compromise that helped the Tea Party get going and eventually cost them the Senate in 2014. (I'm not saying that there were productive compromises with Republicans to be had. It is just that Republicans and the conservative media was successful at making Democrats look like they were governing unilaterally as they engaged in obstructionist tactics wherever possible.)

[MaddogEngineer]

Overton window alert! Oh please! Obama would have taken an Obamacare "public option" if the votes had been there in the Senate. There's nothing principled/moderate about that.

Anyone who drives faster than me is a maniac, slower than me a moron.

[JasonT20]

This isn't about the Overton Window. A public option for health insurance and Dobbs were both within the Overton Window.

I am saying this: a governing majority takes a broad coalition. Sometimes, the party in power understands this and tries to balance what the activists within its coalition want with more moderate views. (Such as Obama recognizing that a public option wasn't going to pass) If a party gets in power and gives its fervent, activist base everything it wants, then that party doesn't represent a majority and voters might do something about that.

[MaddogEngineer]

It seems clear that Roberts has always wanted to deliver reliable advantage to the Republican party

That’s as equally a supported argument as Blackman’s here. Both are dubious.

It’s entirely possible that some people’s principles do not fit nicely into any single ideological camp. I realize that’s how progressives view judging, but I continue to be disappointed in conservative/originalist types who supposedly disagree with outcome based judging. Just because you don’t agree with it, doesn’t mean there isn’t some principle at work in Roberts’ jurisprudence. He may be the most consistent justice, when you actually pay attention to his written reasoning. His track record of disappointing movement conservatives is not just because he wants to maintain his social standing on the cocktail circuit.

One need only look at the data on the high profile cases the Court decides. Almost without fail the “liberal” block of justices (spanning 40 years) consistently vote the way you’d expect them to. It’s the so-called conservatives that seems to splinter, or rather disappoint as their partisans.

[Magister]

Roberts has been working against the Voting Rights Act since the 1980s. Blackman says he viewed Roberts as "depositing and withdrawing capital to advance the conservative "long game."" Plenty of support for "it seems clear that".

[CJColucci]

Who is the intended audience for this stuff, and why should they care?

[Bob from Ohio]

"intended audience"

Conservatives who hate John Roberts. That would be most conservatives.

[JasonT20]

Conservatives who hate John Roberts. That would be most conservatives.

No doubt you determined that most conservatives hate John Roberts by surveying your fellows that comment around here and right-wing media commentators.

Whatever number of conservatives "hate" John Roberts, in my opinion it is entirely because they don't like the way he's voted on less than 5% of the cases that tend to get divided along partisan lines.

[Bob from Ohio]

Its because of the Obama care vote mainly.

[JasonT20]

Confirming what I said, then, thank you.

[bernard11]

Chief Justice Roberts sees himself as the Court's savior--the only force that can protect the legacy of John Marshall. John Roberts, and no one else, knows what is best for the Republic. John Roberts, singlehandedly, can ward off incursions from the radical left Court "reformers" and the radical right (including his colleagues). Of course, this is all a figment of Roberts's imagination. Delusions of grandeur, really.

I'm no fan of Roberts, but this is just idiotic.

[Gandydancer]

And YOU would certainly know the terrain of "idiotic" like the back of your hand.

[SamIamnot]

As I wrote earlier today, Mr. Blackman needs to seek immediate therapy for his irrational obsession with the Chief. Only by doing so does he have any hope of restoring his credibility to higher than its current MTG levels.

[Gandydancer]

Says Mr. No-Credibility-Whatsoever.

[Kleppe]

"Of course, this is all a figment of Roberts's imagination. Delusions of grandeur, really."

This is your daily reminder that people cannot read other people's minds, and pretending to do so is bad persuasion.

[Yogis_dad]

The Legacy of Justice Marshall is one of shame - arrogating to the court a power not delegated to it by the Constitution. The correct treatment of Marbury v. Madison would have been to return the case to a court of original jurisdiction. But Marshall had a plan, and the Congress of his time was too feckless to use power granted to Congress to remove the matter from his jurisdiction. So much bad constitutional precedent has followed this malfeasance that now the average American believes the Supreme Court is empowered to interpret the Constitution and when the justices see fit to rule at odds with it, believes that such a ruling has the force of law.

Roberts is just a hack. nothing more.

[Mr. Bumble]

Shouldn't that be weather vane?

[Rev. Arthur L. Kirkland]

Prof. Blackman has no interest in doing what the elites tell him to do, particularly with respect to their fancy-pants standard English.

[Gandydancer]

Your apparent ignorance of the fact that homophones can be used both intentionally and properly marks you as a bit dimwitted. But we knew that about you already.

[Noscitur a sociis]

Weather vain.

[LawTalkingGuy]

*whether vein*

[Purple Martin]

I would have thought Josh was a skilled enough word wrangler to wring a few more words out of a dated pop-culture reference.

Guess not.

[hobie]

One day some of us will be up against Blackman's students in the court room (if they pass the bar). I know I'll be checking for grammar and ChatGPT usage.

[Beldar]

You beclown yourself EVERY time you post about the Chief Justice, Mr. Blackman. I believe that you are showing symptoms of a genuine clinical derangement. You're certainly not contributing to legal scholarship.

Just stop.