It’s About Votes, Not Tactics

I think Serwer is entirely right about the alleged tactical genius of Chief Justice Roberts.  I would estimate that roughly 99.9% of his victories are the product of having 5 votes on most issues as opposed to any strategic savvy:

Meanwhile, Chief Justice Roberts has amassed a reputation as a kind of tactical genius, a brilliant field marshall for the conservative legal movement whose tendency to defer broad conservative triumphs grants him more legitimacy when he makes big decisions, such as writing the opinion in Shelby County v Holder that struck down a key section of the Voting Rights Act. Four years earlier, in a similar case, he had issued a warning to Congress to alter the law or see it struck down. While liberals can point to a few other successes this term, such as a ruling that struck down a strict Arizona election law or the high court’s punt on affirmative action, the overwhelming direction of the court is to the right.

“The court is willing, when the chief is they driving force, to be very patient at times, but still move the court in a very conservative direction,” says Donnelly. “At a rhetorical level, that does a certain amount of work in making the court appear more moderate.”

Roberts’ tactical genius however, may be a bit overstated. Put simply, with five Republican appointees on the court for the foreseeable future, his forces outnumber those of the opposition. That means Roberts’ can take his time with his victories, and that liberal triumphs, no matter how dramatic, will be few and far between.

“The court’s outcomes are being driven by the composition of the court, not by Roberts’ brilliant strategic choices,” says Winkler. That said, Shelby County is a good example of how he planted the seed for the decision four or five years ago, and saw those seeds blossom.”

With respect to the “seed-planting” of the “equal sovereignty of the states” doctrine in Northwest Austin, which has been getting a lot of attention, as far as I can tell it had absolutely nothing to do with the outcome in Shelby County. At the time, I think everyone understood that the apparent consensus in Northwest Austin was a product of liberals preferring a narrow opinion to the only other plausible outcome of gutting the Voting Rights Act, and nobody would assume that the liberal justices endorsed every bit of dicta in the majority opinion. And then when we got to Shelby County no justice who wasn’t hostile to the Voting Rights Act ex ante endorsed Roberts’s risible equal sovereignty doctrine, which he could have (and, if necessary, would have) invented from whole cloth without making any attempt to defend it in 2013 exactly as he did in 2009. It’s impossible for me to see what concrete effects this “seed planting” had other than to get court watchers to talk about how clever Roberts is. The Voting Rights Act was gutted because 5 justices don’t like the Voting Rights Act; what Roberts wrote in 2009 was beside the point, although it did reveal his hostility.

…cf. also.