Making Sense Of The Chief Justice's Tango In The Ballroom Case

Read the Chief Justice’s six-page dissent in the ballroom case. Does something stand out? There is no reference to the fact that it is a dissent until page four. Virtually every dissent I’ve ever read indicates at the outset where the dissenting Justices depart from the majority. But the Chief Justice jumps straight into things, acting as if he was speaking for the Court. The first two pages focus entirely on the merits, an issue that the majority did not even address. Then Roberts spends another two pages talking about standing. Only halfway-through page four does he refer to “the Court.” And there are no citations to specific page-ranges. Just, “the Court.”

By contrast, the per curiam opinion (by Justice Kavanaugh in my mind) includes four pincites to Roberts’s dissenting opinion. This clearly looks like a conventional majority opinion responding to a dissent.

Perhaps Roberts was in denial that he was in dissent–it happens so rarely. But I have another theory. I get the vibe that Roberts’s dissent was an opinion written so it could easily be converted from a dissent to a controlling opinion. How easy would it be to replace “the Court” with “the dissent”? This was the Chief Justice’s tango in the ballroom case.

Think about the timing. The Chief Justice did not enter an administrative stay on August 13 when the emergency application was filed. With the benefit of hindsight, we knew he was not inclined to rule for the government, so he wanted to create pressure to rule on the matter quickly.

Roberts is a fast writer. He probably wrote his six-page opinion before lunch. He probably finished it before the briefing even concluded.

Yet, on August 21, when the D.C. Circuit’s stay was about to expire, the Chief Justice simply entered an administrative stay. At that point, there were squarely five votes to stay the D.C. Circuit. Why did’t the Chief Justice just drop his dissent, along with the per curiam?

Ultimately, ten days elapsed from the administrative stay on August 21 until the per curiam decision was issued on August 31. There wasn’t much back-and-forth between the opinions. And there was no Kafkaesque dissent from Justice Jackson.

My theory is that the Chief was trying to flip Justice Barrett’s vote. We know the Chief was trying to change Barrett until the bitter end on Dobbs even after a deranged man tried to murder Justice Kavanaugh. At heart, Roberts is still an advocate, trying to get one more vote. But friend don’t let friends give the Chief a fifth vote.

I am quietly dreading reporting from Jodi Kantor about behind-the-scenes action from OT 2025. Maybe the ballroom case will take a twirl.

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