Flashback to October 2015: The Fatal Conceit of Chief Justice Roberts’s “Long Game”

March 31st, 2016

In October, I wrote a post about the fatal conceit of Chief Justice Roberts’s so-called “long game.” In light of the 4-4 split in Freidrichs, this portion of my analysis seems especially timely:

The long long game, however, suffers from a much deeper problem. The notion that a single Chief Justice can single-handedly shape the law over the course of decades, as if he were moving pieces around on a three-dimensional chess set, suffers from what F.A. Hayek referred to as the “fatal conceit.” Our society as a whole is infinitely more complex than any one person could ever possibly understand. It is the “fatal conceit” of central planners that they presuppose enough knowledge to control all aspects of human existence. The notion that Roberts can forge a thirty-year plan—-Stalin only tried for 5 years–to transform the law crumbles on inspection.

The Supreme Court does not exist in a vacuum, where a stasis is maintained. Everything changes. First, and most obviously, the composition of the Court changes. Even if the Chief Justice has a broad vision of what he wants to accomplish, if President Clinton appoints three Justices, all of those plans vanish instantly. His first decade of planning and calculating will be for naught, and the Chief Justice will be in dissent for a generation. Even if a Republican President appoints two or three Justices, there is no way for Roberts to know how they’ll vote. Maybe those Justices will also have a master plan, and will not agree with the Chief’s plan. Or maybe (hopefully not) we will get another Souter or Stevens.

Yes, all of the slow incrementalism that has characterized the Roberts Court presupposes a stasis that is impossible. Had the Court overturned Abood in Harris v. Quinn in 2014, rather than saving the question for another day, Friedrichs would not have mattered. Now, if Justice Garland (or someone likeminded) replaces Justice Scalia, Abood will likely never be overturned.

What about the Chief’s all-important dicta in NFIB about the commerce clause–the so-called saving grace of the saving construction? With Justice Garland on the bench, that language will remain dicta. (Indeed, one of the few dissents Judge Roberts wrote on the D.C. Circuit was in a commerce clause challenge concerning the endangered species act and the “hapless toad”–Judge Garland wrote the panel opinion).

What about the Court’s decision in Fisher I to punt the question, and then grant certiorari again? Well, now we are down to 7 Justices, and it is unlikely any meaningful majority opinion could be reached. The decision not to reach the merits the first go-round, and to kick the can down the road, means the can will stay on the road.

What about the Second Amendment? The Court consistently denied certiorari on every conceivable Second Amendment case, even while the 5 members of the Heller and McDonald Courts were still around. Now, with a Justice Garland (who would have voted to rehear Parker, the D.C. handgun case), Heller is on precarious grounds–perhaps not of outright reversal, but of limiting it to its facts to make it a dead letter.

I could go on, but you get the gist. To the extent that the Chief had any sort of long game, that would be accomplished by slow, incremental decisions, those plans may never go to fruition. The best laid schemes o’ mice an’ men, go oft awry.