Thursday, September 13, 2012

Is Chief Justice Roberts a playmaker?

Garrett Epps, a law professor at the University of Baltimore, has a piece at the Atlantic entitled "Does Scalia Still Mater?".  The answer according to Professor Epps is—SPOILER ALERT—no.  Someone needs to tell Richard Posner, Bryan Garner, and Justice Scalia that they can stop their feud

According to Professor Epps, the Supreme Court "that appears from behind the curtain on October 1 will not be the one that vanished behind it on June 28."  The Supreme Court will be different despite the fact that there are not any new justices this term.

Why will the Court be different?  Because "The Chief Justice is the premier player both sides must deal with."  The sides, of course, are the "liberal" and "conservative " wings of the Court.  Apparently, in past years, no one had to deal with Chief Justice Roberts.  Why the justices have to deal with him now but not in previous terms is unexplained.

Professor Epps speculates that since the Chief Justice is now a "premier player," that October 1, "may be the first day of the post-Scalia era."  According to Professor Epps, the post-Scalia era was foreshadowed on the last day of the Obamacare oral arguments when the Chief Justice said, "That's enough frivolity for a while." Professor Epps says this comment was "uttered by the Chief Justice to Scalia" because Scalia "had interrupted argument of this generation's most important case to begin riffing on an old Jack Benny radio routine."

Reader(s)™ might recall that I mentioned this comment last March in our coverage of the Obamacare oral arguments.  Because the Gillette-Torvik blog delivers nothing but the best in its coverage, I even linked to the transcript.  If you start reading on page 31, you see that the jokes start with the Chief Justice making a joke about Justice Scalia asking permission to ask the hypothetical about the Jack Benny show.  From there, Justices, Scalia, Kennedy, and Sotomayor as well as the Solicitor General all joke around for about a page of transcript before the Chief Justice breaks in on page 33.  People can decide for themselves but it is a strained reading of the transcript to suggest that Justice Scalia is being singled out for "frivolity."  Granted, the person speaking immediately before the Chief Justice speaks is Justice Scalia, but Justice Scalia is not making a joke immediately prior to the Chief Justice's comment. 
So maybe the frivolity comment did not foreshadow Justice Scalia's diminished influence on the Supreme Court.  What about the Professor Epps's larger point?  Is Chief Justice Roberts a premier player? Will Judge Scalia have less of an influence on the Supreme Court than before the 2011 term?
Professor Epps says that he sorts justices into four categories:  (1) solid votes; (2) swing votes; (3)"influences"; and (4) playmakers.  Solid votes are justices "whose position is not in doubt and who tend not to influence others."  Professor Epps uses Justice Thomas as an example of a solid vote.  Swing voters are justices that "can be coaxed across the [ideologicial?] line by concessions; or they may write separate narrow concurrences."  "Influences" are people who by "force of argument gradually reshape whole areas of law."  Professor Epps says that Scalia is an influence.  "Playmakers" are justices who "put together coalitions that determine both results and rules."  Professor Epps says that Justice Brennan and Justice Stevens were playmakers.  Professor Epps writes that, "as we learned last June, Roberts is becoming one."
Accepting the idea that these categories exist, is the health care decision evidence that Chief Justice Roberts is becoming a playmaker?  I do not think so.  After all playmakers determine "results and rules."  While Chief Justice Roberts determined a result (Obamacare is constitutional), none of his fellow justices agreed with his rule (Obamacare is a constitutional exercise of the taxing power).  Justice Robert's rule seems more like an example of a "swing voter" who filed a narrow concurrence.
Professor Epps says that Justice Scalia has been an influence.  This is certainly correct.  Is that influence on the decline?  One need look no further than the number of people who have rushed to attack Judge Posner and defend Justice Scalia in the last few days to see the influence that Justice Scalia has had on the law and the legal community.  It does not feel like Justice Scalia's influence is on the decline. 
One might ask what is the evidence that Justice Scalia's influence will diminish next term?  The "frivolity" comment?  Professor Epps says that the Chief Justice and Justice Alito "seem impatient with originalism and eager to move into new areas like libertarian economic thought."  No evidence is proffered in support of this eagerness.  Moreover the idea that Justice Alito and Chief Justice Roberts are moving lockstep into a libertarian future might strike some as incongruous given that Justice Alito was in the dissent on the Obamacare decision.  Some might also recall that the Chief Justice and Justice Alito also disagreed quite profoundly on the First Amendment case Synder v. Phelps.
Finally, one wonders how much influence "playmakers" really have on their fellow justices.  One might think that most justices trust the legal acumen that got them nominated to the Supreme Court in the first place.  "Playmaker" and "influence" might not be as ridiculous a category as most principled justice but they are close.


  1. Great post. I read that Epps article the other day and had the vague impression that his retelling did no comport with your reportage. I was particularly suspicious of another phrase in the passage, which reads in full:

    "The Chief Justice was not amused. He shot a venomous look at Scalia and told him, in barely civil words, to shut up. That same look flickered across Roberts's face on June 25, when Scalia embarrassed the Court with his rant against Obama during the opinions on the Arizona case."

    That part about the "venomous look" that "flickered across Roberts's face" seemed totally made up to me. Was Epps there? Possibly—he teaches at Baltimore. But is he really so keen-eyed as to interpret the venomousness of the Justices' facial expression from the gallery? It seems far-fetched.

    Now, I don't doubt that Epps thought he saw such a "look" from Roberts. But it's hard not to believe that the look was entirely in the eye of the beholder.

  2. Some more thoughts on this after reading the transcript and listening to the audio (starts at about the 30 minute mark)...

    Take a listen. Do you think that Scalia is actually just bringing up the whole Jack Benny thing to show off his comic timing? I do not. I think he was trying to make a serious (not frivolous) point. The problem is that his argument is deeply confused and confusing. If you want to see "the incoherence of Antonin Scalia," I think this passage is a good place to look. Because he is trying to draw some distinction between "your money or your life" and "your life or your wife's" to make a point about the concept of coercion, and it's just not working. If anything, Scalia's reputation as a card dooms him here, because he has no opportunity to work through the example without people laughing because they assume it's supposed to be a joke. Scalia eventually realizes this, and probably realizes that the whole distinction just doesn't work, when he concludes by saying, "I won't use that as an example. Forget about it." That's when Roberts steps in with his line about frivolity.

  3. I agree that he wasn't making a joke and that his penchant for jokes probably did not help him get his (poor) hypothetical out.

    If anything, the reference to a comedy bit that was old when Justice Scalia was a young man reinforces the stereotype that the justices are out of touch with modern life. The best pop culture example of coercion is a bit by a comedian who died--at the age of 78--in 1974?