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.
