Incrementalism Versus the “Long Game”

There are two additional passages in Adam Liptak’s interview with Justice Ginsburg worth highlighting.  The first describes Chief Justice Roberts’ alleged strategy for shifting the law in a rightward direction.

Some commentators have said that the two voting rights decisions are an example of the long game Chief Justice Roberts seems to be playing in several areas of the law, including campaign finance and affirmative action. Justice Ginsburg’s lone dissent in June’s affirmative action case, leaving in place the University of Texas’ admissions plan but requiring lower courts to judge it against a more demanding standard, may suggest that she is alert to the chief justice’s apparent strategy.

The second characterizes Justice Ginsburg’s preferred approach to modifying doctrine over time:

She said that as a general matter the court would be wise to move incrementally and methodically. It had moved too fast, she said, in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The court could have struck down only the extremely restrictive Texas law before it.

It seems to me that both excerpts describe the same method.  What, after all, is the “long game” other than moving “incrementally and methodically” in a given direction?  Both are fair characterizations of an ideologically oriented minimalism.  Chief Justice Roberts’ minimalism leans to the right, whereas that described by Justice Ginsburg leans to the left — but they are both “miminimalism” just the same.

The real objection to Chief Justice Roberts’ judicial philosophy is not any apparent willingness to move the law , but the direction of the movement.  Put another way, what sparks most progressive criticism of the Roberts Court is not the Court’s alleged “activism” — as it’s not particularly activist — but the Court’s trajectory.  Were the Court working the same way, albeit in a different direction, many of those who complain about the Chief Justice’s “long game” would instead celebrate its “methodical” and “incremental” approach.

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