The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chief Justice Roberts's Opinions Are Best Read Once
But after a second, a third, and a fourth read, all of the fancy veneers and window dressing start to come off.
The mark of an iconic Supreme Court decision is timelessness. With every read, the opinion teaches new insights and provides new lessons on our Constitution. Each semester when I prepare a case like Marbury or McCulloch, I learn something new.
Opinions from Chief Justice Roberts, however, are just the opposite. They are best read once. After the first read, you will come away entirely persuaded that Roberts's analysis was not only the best answer (to use the Loper Bright framing), but the only conceivable answer, as any contrary positions are unfounded. That's the first read.
But when you read a Roberts decision a a second, a third, and a fourth time, all of the fancy veneers and window dressing start to come off. You realize that John Roberts never stopped being an effective advocate, and he remains an effective advocate. The client is now whatever John Roberts himself thinks the Supreme Court should be. All the talk about "institutionalism" was always introspective--what does John Roberts himself think the Court should look like as an institution?
This is how I read Loper Bright. On the first read, I came away extremely impressed by how tight the analysis was. He did everything in about 30 pages--no easy feat! And he kept all members of the Court on board. Whatever urges Justice Barrett had to "Kisorize" Chevron seem to have been eliminated by the Chief's powerful opinion. (I need to give some more thought to why Barrett did not write separately, as the Loper Bright join seems to undermine several of her most recent opinions).
But as I stewed about the Loper Bright majority opinion for a few days, the wheels have started to fall off.
Then again, Roberts's prose is still lovely. This sentence was one of my favorites: "For any landlubbers, 'F/V' is simply the designation for a fishing vessel."
