The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Roberts Swings To The Left In St. Isidore, To The Right In Wilcox
In the span of a single day, Chief Justice Roberts continues his attempts at moderation for the sake of moderation without any actual reasoning.
At One First Street, life comes at you fast. On May 22 at 10:00 a.m., the Court 4-4'd in St. Isidore v. Drummond, letting the Oklahoma Supreme Court's decision stand. I wrote:
Before the case was even argued, I made a crude prediction to several reporters that the Chief would take the easy-out, and just vote to 4-4 affirm. There would be no opinion, and the Court could focus on more important issues. The children of Oklahoma really didn't matter.
What was that "more important issue"? Trump v. Wilcox. After 5:00 p.m. on May 22, after the markets closed, right before a holiday weekend, the Court issued a two-page per curiam opinion in the removal power case. (I'm sure Roberts was humming the Jimmy Buffet song when planning the release time.) The Court, by an (ostensible) 6-3 vote, stayed the lower court rulings that reinstated a member of the NLRB and a member of the MSPB. The actual legal analysis can be compressed in a single sentence:
The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.
Nowhere does the Court mention Humphrey's Executor. It's like Voldemort! I'm not at all convinced Roberts actually overrules Humphrey's Executor when push comes to shove. But he at least signals Wilcox will lose.
Then, the Court includes a bizarre throwaway line about the Federal Reserve, which is in no way even relevant to the parties in this case.
The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.
Why is this argument even in here? Roberts is doing damage control. I agree with Justice Kagan's dissent:
Because one way of making new law on the emergency docket (the deprecation of Humphrey's) turns out to require yet another (the creation of a bespoke Federal Reserve exception). If the idea is to reassure the markets, a simpler—and more judicial—approach would have been to deny the President's application for a stay on the continued authority of Humphrey's.
John Roberts is not a judge. He is a mediator. He issues a conservative ruling against the MSPB and the NLRB (which frankly no one cares about) but issues a liberal advisory opinion in favor of the Fed (which everyone cares about).
At some point, the five conservatives should stop joining these missives. Just rule on the case as you think best, and let Roberts spin his wheels. These sorts of rulings do nothing to instill confidence in the Court as an actual legal body. No one actually believes that Roberts is behaving as a judge when he issues rulings like this. And I say this as someone who thinks Humphrey's Executor should have been overruled decades ago.
Now, the issue will linger in the D.C. courts for some time, and come to the Supreme Court in a cert petition next term.
My essay about the Chief Justice keeps writing itself.
