Tuesday, September 27, 2016

JeffreyToobin, "In the Balance"

Mark Tushnet

From this week's New Yorker: Jeffrey Toobin, "In the Balance," -- "A liberal majority on the Court would present a particular dilemma for the Chief Justice. Roberts’s voting pattern suggests that he would be a frequent dissenter—which no Chief Justice has ever been. Feldman said, 'Roberts might have thirty more years in that job, and he might have it with a liberal majority. Because his only real power is to assign opinions when he is in the majority, he could actually wind up with no power.' ... Kagan is trying to become the internal playmaker, building coalitions that might achieve majorities. 'In future years, if Ginsburg and Breyer are replaced by Democratic appointees, Roberts could turn into the Chief Justice in name while Kagan becomes the de-facto Chief Justice,' Feldman said. 'But, if Roberts wants to stay the real Chief Justice, he might have to moderate his views and join more often with the liberals. But would he want to do that?"

From Mark Tushnet, In the Balance: Law and Politics on the Roberts Court (2013), p. xii -- "The future of the Court will be shaped not only by the nominations that President Obama and his successors will make, but by the competition between Roberts and Kagan for intellectual leadership of the Court, as each forcefully articulates differing views about the balance between law and politics. In the Balance suggests that we might find ourselves talking about a Court formally led by Chief Justice Roberts -- a 'Roberts Court' -- but led intellectually by Justice Kagan -- a 'Kagan Court.'"

Just sayin'. (I put the full link in this post because the print edition apparently gives the article a different title -- "The Supreme Court After Scalia.")

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