I tend to agree with the conclusion but I'm a bit skeptical of the methodology that presumes it's the chief justice doing the work to generate consensus.
I could easily imagine a court where some justice besides the chief functioned as a consensus maker and was responsible for convincing justices to agree on things like ethics rules (maybe merely via agreeableness not power).
My sense is also that in this court it really is Roberts who fills this role but I think that reflects a sense of the personalities.
A question about the element in the majority opinion that Barrett took exception to in her concurrence. A number of writers feel what Roberts wrote came out of left field, so to speak. I heard a podcaster say Alito mentioned it in a question at oral arguments, but that was it.
So why did Roberts add it in the opinion?
I wondered if he added it to hold another justice’s vote.
Thanks for this interesting point! I wouldn't be surprised if Justice Alito (and maybe others) expressed concern about the evidence issue.
I've pasted below a link to the transcript. If you do a "find" for the word evidence, you'll see it was actually discussed quite a bit—originally raised by Justice Alito, but then picked up by Justices Sotomayor and Gorsuch, and addressed by both John Sauer and Michael Dreeben.
I tend to agree with the conclusion but I'm a bit skeptical of the methodology that presumes it's the chief justice doing the work to generate consensus.
I could easily imagine a court where some justice besides the chief functioned as a consensus maker and was responsible for convincing justices to agree on things like ethics rules (maybe merely via agreeableness not power).
My sense is also that in this court it really is Roberts who fills this role but I think that reflects a sense of the personalities.
A question about the element in the majority opinion that Barrett took exception to in her concurrence. A number of writers feel what Roberts wrote came out of left field, so to speak. I heard a podcaster say Alito mentioned it in a question at oral arguments, but that was it.
So why did Roberts add it in the opinion?
I wondered if he added it to hold another justice’s vote.
Anyone else have a guess?
Thanks for this interesting point! I wouldn't be surprised if Justice Alito (and maybe others) expressed concern about the evidence issue.
I've pasted below a link to the transcript. If you do a "find" for the word evidence, you'll see it was actually discussed quite a bit—originally raised by Justice Alito, but then picked up by Justices Sotomayor and Gorsuch, and addressed by both John Sauer and Michael Dreeben.
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-939_f2qg.pdf