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Reason
Reason
Politics
Josh Blackman

Chief Justice Roberts Is Not A "Weather Vain." He's Just So Vain.

Chief Justice Roberts has evolved over the years. There was a time when he could be viewed as an "institutionalist." In 2017, I analogized Roberts to a bank--depositing and withdrawing capital to advance the conservative "long game."

The institutional theory views the Court as something like a checkbook: the Court can take a big withdrawal once in a while, so long it makes regular deposits. Indeed, Roberts has adopted such a fiduciary approach to judging. Back in 2007, he viewed the Court's three-decade-long pattern of divisive 5-4 decisions as "eroding, to some extent, the capital that [Chief Justice] Marshall built up." Thus, decisions can fall on either side of the ledger: deposits or withdrawals. By depositing "capital" in the narrow decisions—such as WRTL v. FEC, NAMUDNO v. Holder, NFIB v. Sebelius, and King v. Burwell —the Court can withdraw that "capital" in the broad decisions like Citizens United v. FEC, Shelby County v. Holder, and cases yet to come.

But after Trump, Roberts's "long game" was turned upside down, and post-Dobbs, the long game is long gone.

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