Is the “Long Game” a “Fatal Conceit,” or Judicial Restraint?

Josh Blackman has written a post on “The Fatal Conceit of Chief Justice Roberts’s ‘Long Game.’” In short, Josh argues that “all of the slow incrementalism that has characterized the Roberts Court presupposes a stasis that is impossible.” As Josh observes, Justice Scalia’s recent death resulted in a 4-4 split in Friedrichs and may soon have similar effects in Fisher II and other cases, thereby illustrating that the Chief’s “plans may never go to fruition” and so have gone “awry.” This reasoning assumes that the Chief’s ultimate inability to issue desired decisions is a defeat or failure.

But recent events don’t necessarily cast doubt on the Court’s approach in the years leading up to Friedrichs and Fisher II. While it’s possible that the recent pattern of postponing major decisions was simply a strategy for achieving desired outcomes with minimal criticism, it’s also possible that the justices have aspired to certain norms of judicial responsibility. As a result, the Chief and other justices may have no regrets about delaying big decisions, even if it turns out that the big decisions never come to pass.

There are many good reasons for deferring big decisions, particularly when they would be unexpected. For instance, issuing a big decision can disrupt well-founded public expectations or undermine the Court’s legitimacy. And by providing notice of its intentions, the Court can nudge other branches toward action. The political branches might even choose new justices with an eye toward the Court’s apparent plans. In those cases, postponing the decision—and thereby making it less surprising—can make all the difference. And if the decision never actually happens, perhaps due to a change in the Court’s composition, that turn of events wouldn’t undermine the rationale for postponement in the first place.

A couple years ago, I argued that the Roberts Court was following what I called “the Doctrine of One Last Chance,” or the idea that “the Court must signal its readiness to impose major disruptions before actually doing so.” (Josh discussed this idea in a related post.) Examples involved campaign finance, the Voting Rights Act, the Affordable Care Act, Guantanamo cases, and Fisher itself. While criticizing aspects of this trend, I noted that “the doctrine of one last chance has advantages even when the Court doesn’t ultimately follow through on signaled changes,” including when there are “changes in the Court’s own composition.” Here’s the most relevant passage:

Like a supermajority rule, the doctrine of one last chance creates a procedural hurdle for legal change. … Under the doctrine, judicial majorities must be stable over a period of time before they can issue major decisions. So if a member of the original majority were to retire, that justice’s replacement would be given a chance to either confirm or repudiate the proposed change.

To date, however, no change in composition seems to have either thwarted or confirmed a threatened constitutional change. For example, the same tentative majority that decided Wisconsin also decided Citizens United, notwithstanding the arrival of Justice Sotomayor; and the same majority that decided Northwest Austin later decided Shelby County, notwithstanding the arrival of Justices Sotomayor and Kagan.

Obviously, that last paragraph is now being superseded by events.  A change in the Court’s composition is now affecting the likelihood that previously deferred decisions will ever come to pass. So we might soon look back on the present term as an important illustration of how the Doctrine of One Last Chance can distribute interpretive power across time and thereby limit the power of any temporary Court majority.

For the last ten years or so, the Court’s deferral habits may have seemed like a costless means of achieving desired ends, but that has never actually been true. Every time the Court has deferred a major decision, or intimated the possibility of one, it has known very well that Things May Change and that its precedential prophecies might not prove self-fulfilling after all. By nonetheless exhibiting jurisprudential patience, the Court allowed for the possibility that some eventuality might result in a change of course.  In that context, never following through is a feature of the Doctrine, not a bug.

Whether the Doctrine of One Last Chance is ultimately a defensible mode of judicial restraint is open to reasonable debate. But recent events don’t show it to be a failure, as judged by its own criteria for success.

First posted on PrawfsBlawg.

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