The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Chief Justice Behind The Curtains
Long-time readers may remember a series of posts I wrote circa 2020 about the conflicts between Chief Justice Roberts and Justice Kagan. One of my recurring themes was that the Chief Justice thought he was in control of the Court, but he clearly wasn't. Moreover, I suggested that the genesis of many of the leaks was due to frustration with the Court, and the Chief Justice's leadership in particular. Finally, I said that if the Chief could not right the ship, he should step down. To this day, people misunderstand my point. My call for resignation had nothing to do with any particular ruling or decision by Roberts that I disagreed with. If that was the litmus test, I would routinely call on the Court's progressives to call it quits. Rather, why would I tell Roberts--someone I agreed with about 90% of the time--to step down? The answer was a failure of leadership that was visible through publicly available information.
The leak in the Clean Power Plan case confirms much of how I've suspected the Chief manages his leadership of the Court.
Remember how John Roberts projects himself publicly. Roberts is an "institutionalist." He came to the Court wanting to reduce the number of 5-4 decisions. He didn't want the Court to seem partisan with teams on the right and teams on the left. He favored slow, incremental decisions.
Yet in the Clean Power Plan case, he tossed all of that caution to the wind. He led the charge to grant an unprecedented stay by a party line 5-4 vote. Justice Breyer offered a potential middle ground, which Roberts forcefully rejected as meaningless. Further, Justice Kagan's memorandum stated quite clearly how Roberts was venturing into novel territory. Roberts didn't care. And this wasn't a case where Justice Thomas or Scalia was pushing the Court to the right, and Roberts felt compelled to join so he could moderate. The Chief Justice was behind the wheel. Justice Kennedy said he was persuaded by the Chief in particular. Had Roberts done nothing, the stay would have been denied.
I don't think anyone could have anticipated what would happen with the emergency docket, but there was every good reason to recognize this ruling was novel. There is a reason I remember the exact moment in time when I read about the stay. For me, it was akin to asking "Where were you when President Kennedy was assassinated" or "Where were you when Reagan was shot." (I was not alive for either moment.) I remember the stay order with absolute clarity, because I immediately recognized how big a shift this was. Savvy judges on the D.C. Circuit, including then-Judge Kavanaugh, likely realized the impact as well. I would love to have asked Judge Silberman about this ruling. The Supreme Court told the nuclear D.C. Circuit "We don't trust you." If you want to mark the beginning of the rupture between the Supreme Court and the lower courts, this was likely it.
So then what do we make of the Chief Justice's purported institutionalism? It's not real. It was never real. When the Chief Justice says he is committed to the Supreme Court as an institution, that simply means he is committed to the Supreme Court as he sees it. The man cannot separate the two concepts. I'm sure John Marshall suffered from the same delusions of grandeur. Roberts is a judicial supremacist, and in particular, a SCOTUS supremacist. He could not brook the notion that lower court judges could settle this major question of national significance. It would have been untenable for Chief Judge Garland, the SCOTUS Susan Lucci (always on the short-list but never a winner), to have the final say. And the notion that the outgoing Obama Administration could lock in a policy without the Chief Justice having his say was also untenable. Roberts saved Obamacare so he earned this right to intervene. Thus, the modern shadow docket was born not to hurt a liberal president or help a conservative president. It was born to ensure the Supreme Court remained Supreme. Trump v. CASA, decided a decade later, was a manifestation of that philosophy.
When Roberts publicly rants about institutionalism, his colleagues have to roll their eyes. This is what we would call a loss of leadership. The other justices cannot take him seriously. It is unsurprising then there are so many leaks, even as the Chief purports to clamp down. In any other field, a CEO or head coach with this track record would have been long ago removed. But not on the Supreme Court.
Roberts should have stepped down in 2020. I think the Supreme Court would be much healthier today with anyone else at the helm--including Elena Kagan. Justices Thomas and Alito are the glue holding the Court together. They should stay as long as they can. The Chief Justice, by contrast, is still stuck in his own world. Maybe the Chief Justice should take a deep look in the mirror and realize that he bears a lot of the blame for the current crisis.
