Roberts, Re, and the Accommodation

Stability as Judicial Self-Aggrandizement

Richard Re’s two recent posts are useful because they refuse the crudest account of John Roberts. The crude account says Roberts has simply stopped being an institutionalist and become another conservative vote. Re’s essays are better than that. They see that Roberts remains distinctive. He still thinks institutionally, he still cares about the Court’s authority, he still tries to discipline the conservative legal movement’s more destabilizing impulses, and he still understands himself as managing constitutional change, not merely participating in it.

That is the virtue of both pieces. Re does not treat Roberts as a hack carrying the GOP’s water. He treats him as a jurist with a project.

But that is also where the essays become too charitable. They explain Roberts mostly in Roberts’s own language: stability, moderation, minimalism, gradualism, institutional legitimacy. Those are real aspects of Roberts’s judicial style. But they are not the essence of his jurisprudence. They describe how Roberts manages power, not what power he is managing toward.

The better question is not whether Roberts has become more maximalist or whether he is still moderating. The better question is: what constitutional order is Roberts trying to stabilize, and what role does the Court assign itself within that order?

That is where my own work points toward a different account. Roberts is not simply an institutionalist defending stability. He is a juristocrat managing an accommodation between presidentialism and judicial supremacy. His administrative law is not merely conservative and not merely pragmatic. It is a form of Americana Administrative Law: a nostalgic, court-centered vision of governance that invokes an idealized constitutional past in order to discipline Congress, subordinate administration, and enlarge the judiciary’s authority over the basic terms of government.

Re sees important features of Roberts’s style. But he does not fully capture Roberts’s structure of power.

Re’s First Essay: Maximalism in Defense of Stability

Re’s first essay begins from an apparent contradiction. Roberts has long been associated with judicial minimalism. He is supposed to prefer narrow rulings, avoid unnecessary constitutional questions, preserve room for future cases, and decide no more than the dispute requires.

But in Trump v. Barbara and Trump v. Cook, as Re describes them, the Court did more than that. In Barbara, the Court did not merely dispose of the birthright-citizenship dispute on narrow grounds. It spoke broadly enough to stabilize the constitutional rule. In Cook, the Court did not merely reject Trump’s attempt to remove Lisa Cook from the Federal Reserve Board on procedural or fact-specific grounds. It reached the larger question of the Federal Reserve’s unique statutory setup and effectively constitutionalized the Fed’s special status.

For Re, this shows that Roberts’s minimalism contains an exception. Ordinarily, deciding less promotes stability. But sometimes deciding less produces instability. Sometimes uncertainty itself becomes the danger. When the constitutional status of birthright citizenship or the independence of the Federal Reserve remains unsettled, the costs of judicial silence may exceed the costs of judicial breadth.

That is Re’s central formulation: Roberts is practicing maximalism in defense of stability.

It is an elegant argument. It captures something real about the way Roberts justifies broad decisions. Roberts rarely presents himself as a revolutionary. Even when he transforms doctrine, he writes as though he is preserving something deeper than precedent: constitutional structure, settled expectations, legal regularity, institutional continuity. Re is right that Roberts’s maximalism often takes the form of preservation. The Court says more than necessary not because it has abandoned restraint, but because it believes restraint would leave an intolerable uncertainty in place.

There is real explanatory power in that. Cook is a particularly good example. Federal Reserve independence is not simply another agency-design question. It implicates monetary credibility, financial markets, elite institutional confidence, and the government’s capacity to project stability. A narrow opinion might have produced doctrinal restraint but institutional anxiety. A broad opinion would require doctrinal aggression but might ensure institutional calm.

So Re’s first essay gets at something important: Roberts’s Court often treats judicial breadth as the price of constitutional settlement.

But the weakness of the argument is that “stability” is asked to do too much work.

The Limits of Stability

The problem with stability is that it is not self-defining. Stability of what? Stability for whom? Stability at what institutional level?

Jurists have often pursued “stability” at precisely the moments when stability was most morally and politically dangerous. Chief Justice Taney’s opinion in Dred Scott is the canonical example. The decision was not written as an invitation to chaos. It was written as an attempted settlement. Taney sought to remove slavery from ordinary democratic contestation, quiet sectional conflict, protect slaveholding expectations, and impose a judicially managed constitutional peace. But that peace was purchased by constitutionalizing racial subordination and chattel slavery. In the name of stability, the Court stripped Congress of authority, degraded Black citizenship, entrenched the slave power, and helped push the country toward disunion. The lesson is not that courts should be indifferent to destabilizing consequences. It is that stability is never self-justifying. A Court that asks only whether uncertainty is dangerous may miss the more important question: whether the settlement it is stabilizing is itself the source of constitutional crisis.

There is stability in preserving birthright citizenship. There is stability in preserving the Federal Reserve. But there was also stability in preserving Chevron. There was stability in preserving the Voting Rights Act. There was stability in preserving the basic New Deal accommodation between Congress, agencies, courts, and the President. There was stability in preserving Congress’s long practice of structuring administrative offices around expertise, decisional independence, and legally bounded discretion.

The Roberts Court has not been a Court of stability in any general sense. It has destabilized enormous areas of law. It has remade administrative law. It has weakened congressional regulatory authority. It has narrowed voting-rights protections. It has transformed presidential immunity. It has unsettled long-standing doctrinal settlements in the name of a higher constitutional restoration.

So stability cannot be Roberts’s governing principle. At most, it is a principle he invokes when he has already decided that a particular settlement deserves preservation.

That is the central gap in Re’s first essay. It explains why Roberts may want to stabilize some institutions. It does not explain how Roberts decides which institutions deserve stability.

This is where Americana Administrative Law becomes useful. Roberts’s administrative law often works through a nostalgic constitutional aesthetic. It imagines a lost world of clear legislative authorization, bounded administration, judicially enforced limits, and constitutionally legible institutional roles. It invokes the ideal of Congress as a deliberative lawmaking body while using doctrine to discipline the actual Congress that exists. It says, in effect: Congress may govern through administration only if it does so in the terms the Court recognizes as constitutionally authentic.

That is why Roberts’s stability is selective. He is not stabilizing the administrative state. He is stabilizing those fragments of the administrative state that can be incorporated into the Court’s preferred constitutional story.

The Federal Reserve can be stabilized because it can be narrated as exceptional: financially sensitive, institutionally venerable, market-stabilizing, and historically distinctive. Birthright citizenship can be stabilized because it reflects a constitutional settlement so foundational that undoing it would appear not as ordinary legal change but as civic rupture. But ordinary administration, broad delegation, agency interpretation, and independent regulatory power do not receive the same solicitude. They are treated as suspicious modern accretions unless they can be translated into the Court’s curated historical categories.

That is not neutral stability. It is constitutional curation.

Re’s Second Essay: Moderating from the Front

Re’s second essay makes a different but related claim. It argues that Roberts has not stopped being an institutional moderate. Rather, he now moderates differently.

Earlier in his tenure, Roberts could sometimes moderate by standing between blocs. He could narrow conservative outcomes, join liberals in institutional cases, or avoid sweeping doctrinal change. But once the conservative majority became secure, Roberts’s role changed. If he wanted to shape the Court, he had to remain inside the conservative coalition. He had to lead it.

That is what Re means by moderating from the front.

Roberts moderates not by defeating conservative outcomes, but by controlling their form. He writes the majority opinion. He manages the coalition. He prevents sharper opinions from becoming law. He channels conservative ambition into doctrinally usable forms. He turns potentially explosive claims into respectable holdings. He preserves the Court’s institutional capital while still moving doctrine rightward.

Again, this is a valuable observation. Roberts is not simply a vote. He is an institutional manager. He often distinguishes between Trump’s immediate political interests and the longer-term interests of conservative constitutional law. When Trump threatens the Court’s authority, the legal system’s credibility, or the stability of elite institutions, Roberts may resist him. But that does not make Roberts a liberal or even a centrist. It makes him a steward of a different conservative project.

Re’s second essay is strongest when it sees that Roberts’s anti-Trump moves are not necessarily anti-conservative moves. Roberts can reject Trump’s tariff theory, reject Trump’s birthright-citizenship order, and reject Trump’s attempted removal of Lisa Cook while still advancing a conservative restructuring of constitutional law. Trump wants personal control. Roberts wants judicially administered constitutional hierarchy. Those interests overlap often, but not always.

Still, “moderating from the front” has the same limitation as “maximalism in defense of stability.” It captures Roberts’s style without fully explaining his project.

The Limits of Moderation

Moderation is also not self-defining. Moderate compared to what? Clarence Thomas? Samuel Alito? The Republican Party? The pre-Roberts constitutional baseline? The Warren Court? The New Deal settlement?

Roberts often appears moderate only because the available comparison is more extreme. But a decision can be moderate relative to Thomas and radical relative to existing law. That may be Roberts’s signature move: he makes transformation look like statesmanship.

That is why the language of moderation can mislead. Roberts can moderate tone while intensifying judicial power. He can moderate doctrine’s surface while shifting the institutional baseline. He can reject Trump’s most lawless claims while entrenching a constitutional structure in which executive power and judicial supremacy reinforce one another.

This is where the concept of judicial self-aggrandizement matters.

Judicial self-aggrandizement is not the same thing as judicial activism. It is not merely the invalidation of statutes. It is not merely judicial supremacy in the abstract. It is the Court’s accumulation of institutional authority to decide more and more of the basic questions of governance. It is the judiciary’s ability to convert political, administrative, and legislative questions into judicial questions, and then to present that conversion as the ordinary operation of law.

Roberts’s moderation often functions as a mechanism of self-aggrandizement. By writing narrower opinions, maintaining institutional tone, and avoiding the most inflammatory versions of conservative doctrine, Roberts makes judicial expansion more durable. He reduces backlash. He preserves legitimacy. He ensures that the Court remains the institution through which the administrative state, presidential power, congressional capacity, and democratic governance are filtered.

So the problem with Re’s second essay is not that it is wrong to describe Roberts as moderating from the front. The problem is that the phrase risks accepting Roberts’s own self-presentation. It treats moderation as a virtue without asking what moderation is making possible.

Roberts is not merely moderating the conservative majority. He is managing judicial self-aggrandizement.

The Shared Blind Spot: The Accommodation

Taken together, Re’s two essays describe Roberts as a judge of stability and moderation. But the more revealing frame is the Accommodation.

The Accommodation is not the old New Deal settlement. It is not the classic arrangement in which courts grudgingly accepted the administrative state while preserving judicial review at the margins. Nor is it simply the “accommodation of Progressive Legal Theory” that Mark Tushnet describes in connection with administrative law in the 1930s.

The emerging Roberts-era accommodation is different. It is an accommodation between presidentialism and juristocracy.

The administrative state survives, but on terms set by the President and the Court. Congress’s role is narrowed. Agencies are made more vulnerable to presidential direction. Broad delegations are treated with suspicion. Agency interpretations lose deference. Major policy questions are reserved for judicial recognition of congressional clarity. Independent administration is placed under pressure unless it can be redescribed as historically exceptional. The President gains control over administration, but the Court gains control over the legal conditions under which that presidentialized administration may operate.

That is the deeper structure Roberts is building.

This is why Roberts can appear both anti-administrative and pro-institutional, both anti-Trump and pro-executive, both minimalist and maximalist. He is not trying to abolish the state. He is trying to reorder it.

The state that emerges from this project is not libertarian. It is not simply anti-regulatory. It is a state in which the President and the Court become the dominant constitutional actors. Presidentialism supplies energy, hierarchy, and democratic rhetoric. Juristocracy supplies legality, boundaries, and institutional legitimation. Congress becomes a diminished source of text to be parsed, clarity to be demanded, and authorization to be policed. Agencies become instruments whose legitimacy depends on presidential control or judicially approved historical exception.

That is the Accommodation.

Re’s first essay sees the stabilizing moves. Re’s second essay sees the leadership moves. But neither fully names the institutional settlement those moves produce.

Roberts’s Americana Administrative Law

This accommodation depends on a particular kind of legal imagination: Americana Administrative Law.

Americana Administrative Law is not simply originalism. It is not simply textualism. It is not even simply anti-administrativism. It is a nostalgic vision of administrative legitimacy organized around idealized images of Congress, courts, and executive power.

It imagines Congress as a body that should speak clearly, specifically, and formally before agencies may act on major questions. It imagines courts as the neutral guardians of that legislative clarity. It imagines the President as the constitutionally legible head of administration. It imagines agencies as constitutionally suspect when they combine expertise, discretion, insulation, and policymaking in ways that do not map neatly onto judicially favored categories.

This is why the major questions doctrine is so central. MQD is not only a doctrine about agencies. It is also a doctrine about Congress. It uses judicial review to change Congress’s internal incentives. It tells Congress that ordinary legislative practice is not enough. It requires Congress to legislate in a form that satisfies the Court’s vision of democratic authorization. It is therefore not simply a check on the administrative state. It is a judicial intervention into the legislative process.

That is the point of calling it Americana. The doctrine trades on a sentimental picture of Congress: the town-meeting legislature, the transparent lawmaker, the body that speaks in clear civic prose before great national questions are resolved. But the actual Congress is a complex institution operating through committees, delegations, appropriations, oversight, bargaining, and administrative design. Americana Administrative Law treats that institutional complexity as a constitutional defect.

Roberts’s administrative law therefore does not simply restore Congress. It disciplines Congress. It invokes Congress in order to empower courts.

That is judicial self-aggrandizement in congressionalist clothing.

Cook, Barbara, and the Court’s Selective Preservation

This framework helps explain why Cook and Barbara matter.

On Re’s account, they show Roberts’s willingness to decide broadly in defense of stability. On my account, they show the Court deciding which settlements can be incorporated into the Accommodation.

Barbara stabilizes birthright citizenship because destabilizing it would threaten the basic constitutional identity of the polity. It would make the Court appear complicit in civic rupture. Stabilizing birthright citizenship therefore protects not only citizenship, but the Court’s own claim to stand above Trumpian personalism.

Cook stabilizes the Federal Reserve because the Fed occupies a special place in the constitutional political economy of the modern state. It is independent, but not independent in the same way the FTC, NLRB, or other regulatory agencies are independent. It is technocratic, fiscally sensitive, market-facing, globally significant, and elite-legible. It can be treated as exceptional without broadly validating the independent administrative state.

That is the key. Roberts can save the Fed without saving independent administration as such. He can preserve central banking while continuing to erode other forms of administrative independence. He can stabilize the institution that markets require while maintaining pressure on institutions that regulate markets.

This is exactly where Re’s stability frame needs supplementation. The question is not merely why Roberts stabilized the Fed. The question is why Fed independence can be stabilized while other forms of administrative insulation remain constitutionally vulnerable.

My work provides a different answer: the Fed is not merely special because it is important. It belongs, or at least can be made to belong, to a longer Anglo-American tradition of insulating officials who exercise judge-like, fiscally sensitive, or legally bounded functions. That tradition includes decisional impartiality, administrative judicialization, and the due process state. It is not a New Deal invention. It is part of the deeper architecture of American governance.

But Roberts’s use of that history is partial. He may preserve the Fed as an exception while refusing to acknowledge the broader tradition that makes the exception intelligible.

That’s the problem.

American Administrative Law Against Americana Administrative Law

Here the distinction between American Administrative Law and Americana Administrative Law becomes central.

Americana Administrative Law is Roberts’s aesthetic. It is nostalgic, selective, and judicially curated. It imagines a constitutional past that empowers courts to discipline modern governance.

American Administrative Law, as my work understands it, is messier and more institutional. It is not a story of pure presidential hierarchy or pure judicial control. It is a story of Congress building administrative capacity, creating offices, structuring decisionmaking, insulating certain functions, imposing procedures, and experimenting with forms of governance that do not fit neatly into modern separation-of-powers boxes.

This history matters because it disrupts both the UET and juristocracy.

Against the UET, it shows that law execution has never meant simple presidential command. American governance has long included administrators who perform executive functions under norms of impartiality, legal constraint, and decisional independence. Quasi-judicial administration is not an anomaly. It is a constitutional tradition.

Against juristocracy, it shows that courts are not the sole authors of administrative legitimacy. Congress built much of the legal architecture that made modern administration legitimate. The APA as administrative law’s superstatute did not simply subordinate agencies to courts; it reflected a broader institutional settlement around administrative judicialization, procedural regularity, and decisional neutrality. Congress, not only courts, constitutionalized the administrative state in practice.

That is why Roberts’s project is so troubling. He takes fragments of this history and turns them into judicial exceptions. He preserves what the Court can recognize and disciplines the rest. He converts a broad tradition of congressional administrative constitutionalism into a narrow set of judicially managed carveouts.

The result is not historical fidelity. It is historical domestication.

Judicial Self-Aggrandizement as the Missing Concept

This is what Re’s essays miss most. Roberts’s institutionalism is not merely a concern for the Court’s legitimacy. It is a practice of institutional expansion.

Roberts’s Court expands judicial authority by making itself the arbiter of administrative legitimacy. It decides when Congress has spoken clearly enough. It decides when an agency question is major. It decides which independent institutions are historically exceptional. It decides when presidential control is constitutionally required and when it must yield. It decides which settlements count as stable and which count as unlawful.

That is judicial self-aggrandizement.

It does not always look aggressive. Sometimes it looks cautious. Sometimes it looks moderate. Sometimes it looks like restraint. Sometimes it looks like stability. But the through-line is the same: more governing questions become judicial questions.

This is why Roberts can be both moderate and aggrandizing. In fact, moderation may often be the form his aggrandizement takes. He does not need to sound like Thomas or Alito. He does not need to announce the most sweeping theory available. By writing careful opinions that preserve the Court’s institutional image, he makes the expansion of judicial authority more acceptable.

That is also why Roberts can oppose Trump. Trumpian presidentialism threatens juristocracy when it denies the Court’s role as the final manager of constitutional meaning. Roberts is not opposed to strong executive power as such. He is opposed to executive power that escapes judicial administration. He can accept presidentialized administration so long as the Court remains the institution that defines its legal limits.

This is the Accommodation instantiated: presidential control below, judicial supremacy above.

Roberts’s Institutionalism Reconsidered

The conventional Roberts question is whether he is still an institutionalist.

The answer is yes, but that answer is incomplete. Roberts is an institutionalist for the judiciary. His institutionalism is court-centered. It is concerned with the Court’s prestige, authority, and capacity to manage constitutional change.

That is not the same as constitutional institutionalism in a broader sense. A genuinely institutional account would care about Congress’s capacity, administrative legitimacy, agency expertise, legislative oversight, the design of quasi-judicial offices, and the historical role of statutory institutions in structuring public power.

Roberts’s institutionalism is much narrower. It protects the Court’s ability to supervise the rest of government.

That is the crucial difference. Roberts may speak the language of constitutional structure, but his structure is organized around judicial finality. He may invoke Congress, but often to discipline Congress. He may defend presidential accountability, but only within a system where courts decide the legal meaning of accountability. He may preserve the Fed, but as an exception the Court recognizes rather than as evidence of a broader congressional power to create insulated administration.

So the real critique of Roberts is not that he lacks institutionalism. It is that his institutionalism is juristocratic.

Re’s Roberts and My Roberts

Re’s Roberts is a sophisticated institutional manager. He sometimes decides broadly to stabilize law. He moderates by leading the conservative coalition. He resists Trump when Trump threatens legal regularity. He preserves the Court’s authority through a mixture of prudence and leadership.

My Roberts is more structural and more troubling.

My Roberts is a builder of the Accommodation. He is not simply navigating between minimalism and maximalism. He is constructing a constitutional order in which administrative governance survives only under the paired dominance of presidentialism and juristocracy. He is not merely stabilizing law. He is stabilizing the Court’s role as the institution that determines which parts of the administrative state are legitimate. He is not merely moderating conservative doctrine. He is making judicial self-aggrandizement appear moderate.

This Roberts is not a hypocritical, unserious partisan. He is more consequential than that. He is the chief architect of a court-centered constitutional settlement.

That is why Re’s essays are useful but incomplete. They describe Roberts’s techniques. They do not fully describe Roberts’s regime.

The Positive Vision: Congress, Quasi-Judicial Administration, and the Due Process State

The alternative is not simply to defend the administrative state as it exists. Nor is it to defend Humphrey’s Executor as if its categories were perfectly reasoned. The better alternative is to recover the actual institutional history of American law.

Administrative law provides an example. The history of American administration shows that Congress has long structured administration around more than just presidential command. Congress has created offices with decisional independence. It has insulated officials performing judge-like functions. It has protected fiscal administration from direct political domination. It has built procedures, boards, commissions, and adjudicative mechanisms designed to preserve impartiality within law execution.

This is the tradition of quasi-judicial administration. It is also the tradition of the due process state.

The point is not that administrators are judges. The point is that American law has repeatedly grafted judge-like norms onto administration when legality, impartiality, money, status, or individual rights required it. That tradition cuts against the strongest versions of the unitary executive theory. But it also cuts against Roberts’s juristocracy because it shows that constitutional legality is not made by courts alone.

Congress is not merely a problem to be disciplined by MQD. Congress is a constitutional actor that built the administrative state. Congress made choices about institutional design. Congress mediated between expertise, democracy, legality, and accountability. Congress constructed much of the machinery through which American public law became real.

This is where my vision differs most sharply from Roberts’s. Roberts’s Americana Administrative Law uses a nostalgic image of Congress to empower courts. My American administrative law recovers Congress as an actual historical institution.

That recovery matters because it offers a way out of the Accommodation. It refuses the forced choice between presidentialism and juristocracy. It insists that administrative law is also a field of legislative constitutionalism. It treats Congress not simply as a source of statutory text, but as an architect of constitutional governance.

Conclusion: Stability for Whom?

Re is right to say that Roberts’s Court cannot be understood through old clichés about minimalism. He is right to say Roberts sometimes uses maximalism to stabilize constitutional law. He is right to say Roberts moderates from within the conservative majority rather than outside it. These are real insights, and they are worth taking seriously.

But they remain too internal to Roberts’s own theory of himself.

The more important point is that Roberts’s stability is selective, his moderation is instrumental, and his institutionalism is juristocratic. He stabilizes the institutions that fit the Court’s constitutional narrative. He moderates the conservative legal movement in order to make its victories durable. He invokes Congress in ways that enlarge judicial authority over Congress. He preserves parts of the administrative state while forcing the rest into an accommodation between presidential control and judicial supremacy.

That is why the language of Americana Administrative Law, judicial self-aggrandizement, and the Accommodation is more revealing than the language of minimalism and moderation.

Roberts is not simply deciding how much the Court should say. He is deciding which institutions deserve constitutional memory. He is not merely preserving stability. He is stabilizing a regime in which the Court decides the terms on which modern government may exist.

The alternative is a thicker history of American administrative law: one that takes Congress seriously, recovers quasi-judicial administration, recognizes the due process state, and refuses to reduce constitutional governance to presidential command checked by judicial permission.

That history does more than defend particular agencies. It challenges the entire Roberts Court settlement. It shows that American constitutional law has always contained more institutional pluralism, more congressional creativity, and more administrative legality than the Court’s nostalgic categories allow.

Roberts’s project is Americana. The answer is the actual workings of the Anglo-American constitutional project.