It was the Chief Justice, not KBJ, who was delaying the case. Was he aiming to tilt ACB’s vote?
The six-page dissent written by the Chief Justice in the ballroom dispute merits a careful read. What stands out, if anything? Notably, the author does not acknowledge that he is issuing a dissent until page four. Most dissents I’ve encountered begin by signaling exactly where they diverge from the majority. Instead, the Chief Justice plunges in as though he is voicing the Court’s view. The initial two pages discuss the merits—a topic the majority had not addressed—and then the text shifts to standing for two more pages. It’s not until the middle of page four that “the Court” is even mentioned, and there are no pinpoint citations to page ranges—only a general reference to “the Court.”
By contrast, the per curiam ruling (which I would attribute to Justice Kavanaugh) contains four pinpoint citations to Roberts’s dissent, signaling a conventional majority opinion crafted as a response to a dissent.
Perhaps Roberts refused to admit he was dissenting—a rarity indeed. But I offer another possibility. The tone of his dissent reads as if it could be transformed into a controlling ruling simply by replacing the phrase “the Court” with “the dissent.” This, it seems, was the Chief Justice’s dance in the ballroom case.
Consider the timing. The Chief Justice did not issue an administrative stay when the emergency application was filed on August 13. With hindsight, it’s clear he was not inclined to rule for the government; his aim appeared to be pressuring the matter toward a quick decision.
Roberts drafts swiftly. It’s plausible he composed his six-page opinion before noon and perhaps finished it even before the briefing concluded.
Nevertheless, on August 21, as the D.C. Circuit’s stay neared expiration, the Chief Justice simply filed an administrative stay. At that moment the votes to sustain the circuit’s stay were five. Why didn’t the Chief Justice drop his dissent, together with the per curiam?
Ultimately, ten days elapsed from the August 21 administrative stay to the August 31 per curiam decision. The exchange between opinions was minimal, and there was no Kafkaesque dissent from Justice Jackson.
My hunch is that the Chief aimed to convert Justice Barrett’s vote. We know he pressed to win Barrett over until the close on Dobbs, even after an attacker briefly threatened Justice Kavanaugh. At heart, Roberts remains an advocate seeking one more vote. Yet friends don’t let friends give the Chief a fifth vote.
I’m quietly bracing for Jodi Kantor’s forthcoming account of the behind-the-scenes maneuvering around OT 2025. Perhaps the ballroom case will get another turn on the floor.
