A Tale of Two Chiefs

I have some thoughts on Slaughter and Cook. In this new essay for Law & Liberty, titled A Tale of Two Chiefs, I was feeling Dickensian.

Here is the introduction:

Chief Justice John Roberts’s twentieth year on the Supreme Court demonstrates the contradictions of his career. There is Chief Justice Roberts, the institutionalist, who strategically guides the Supreme Court by not deciding more than is necessary to decide. Then there is Chief Justice Roberts, the institutionalist, who strategically guides the Supreme Court by deciding more than is necessary to decide. Which Roberts do we get in each case? This tale of two chiefs depends entirely on whether Roberts determines the decision will lead to the best of times or the worst of times. If the Chief fears rough roads ahead, less will be decided. If the Chief sees smooth sailing, more will be decided. No more, no less.

This tale can be told in two cases decided simultaneously on the final day of the Supreme Court’s term, each involving President Trump and Chief Justice Roberts. First, in Trump v. Slaughter, Roberts overturned a nine-decade-old precedent that protected “independent” agencies, allowing Trump to fire a commissioner. Second, in Trump v. Cook, Roberts reaffirmed the independence of the Federal Reserve, and blocked the president’s removal of the board governor. Each case represented what could only be called judicial maximalism. The Court reached out to issue sweeping rulings on issues that did not need to be decided. This duo of decisions from the chief justice is confounding, and conflicts with every fiber of Roberts’s purported institutionalism and minimalism over the course of two decades.

I also explain that the 3-3-3 Court is largely dead.

Back in June 2022, I was the first scholar to write about the so-called 3-3-3 Court, though others have since picked that term up. The thinking went that the Court had three coalitions of three justices: the progressives (Sotomayor, Kagan, and Jackson), the conservatives (Thomas, Alito, and Gorsuch), and the center-right members (Roberts, Kavanaugh, and Barrett). That tripartite alignment largely ran its course as Justices Kavanaugh and Barrett have settled in. Now, in the cases that count, there are two predominant splits. There is the 6-3 super-conservative Court, with the chief justice squarely in control. Or, there is the Roberts +1 Court: the three progressives sign onto whatever the chief justice is serving, and they are joined by either Justice Barrett or Kavanaugh.

In Cook, Justice Kavanaugh was Roberts’s +1. Kavanaugh was also worried about the potential consequences for monetary policy from weakening the Federal Reserve’s independence. Still, Kavanaugh suggested that Trump could remove Cook if he followed certain processes. In another landmark case, Trump v. Barbara, Justice Barrett provided the +1 for birthright citizenship. Barrett did not write separately, so we do not know for sure what her thinking is. But she did not join Justice Kavanaugh’s concurrence, which found that Trump’s reading of the Citizenship Clause of the Fourteenth Amendment was correct, even though his order conflicted with statutory law. Both Cook and Barbara reached out to decide far more constitutional questions than were necessary. And those rulings only set precedents because Justices Kavanaugh and Barrett signed on in full.

My recommendation, to channel a classic 1990s PSA.

My humble suggestion for the future: friends don’t let friends be the chief justice’s fifth vote. Whenever the chief justice writes a majority opinion that has only four votes, the other conservatives should concur only in judgment to deny his situational jurisprudence precedential authority. In Cook, even if Justice Kavanaugh agreed that the Federal Reserve must remain independent, he should have only joined parts of the chief’s opinion that did not reach out to settle novel questions. And in Barbara, Justice Barrett could have concluded that even if the best reading of the Fourteenth Amendment is to guarantee birthright citizenship, there is no reason to definitively set a constitutional rule, as the statute simply incorporates the constitutional standard. Both cases would have turned out exactly the same way, but no new risky precedents would have been set. Like Oliver Twist, the chief justice can keep asking for one more vote—and his colleagues should just say no.

Let’s see how the votes shake out this term.