Bench Memos

Known and Unknown

Following up on my long post from Friday on reactions to Chief Justice Roberts’ opinion in NFIB v. Sebelius, I note that various commentators continue to propound the evidence-free story line that the Chief was self-consciously behaving “politically” in the position he took in the case:

Marc Thiessen blogging at the Washington Post says Roberts “decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome.”

Thomas Friedman in the New York Times, says Roberts was “inspired by a simple noble leadership impulse at a critical juncture in our history–to preserve the legitimacy and integrity of the Supreme Court as being above politics.”

Charles Lane in the Washington Post writes that the chief justice wrote “less a legal opinion than a plan for national cohesion, on terms remarkably favorable to conservatives,” showing a talent for “nonpartisan” leadership through compromise that will benefit the country for years to come.  Lane’s evidence for such motives being present in Roberts’ mind is . . . that he wrote his senior thesis at Harvard on Daniel Webster.  Sheesh.  I saw Lane propounding this thesis (minus the Webster stuff) on Fox News Sunday yesterday, and he was visibly pleased with himself.  I have always liked Lane’s work, but here’s some unsolicited advice: you should doubt yourself when your arguments too closely resemble those of America’s most fatuous opinion columnist, Thomas Friedman.

As I argued on Friday, whether you castigate Roberts for a “betrayal,” wring your hands over his “caving to pressure,” or praise him for “statesmanship,” the common denominator is a belief that Roberts believed one thing about his duty as a judge but did another incompatible thing.  This has always been the problem with the label “judicial statesman,” for it offers an explanation of judicial behavior that resorts to non-legal or even anti-legal criteria to explain rulings that (in the eyes of those doing the explaining) don’t make sense on the basis of conventional legal criteria.  (Note that every decision fully defensible on its own terms as correct about the law needs no such extrinsic explanations.  While it is often interesting to know why people do the right thing, it is when people do the wrong thing that we need to engage in moral pathology work.) 

Friedman and Lane, or for that matter E.J. Dionne, Charles Krauthammer, Ruth Marcus, and David Brooks, in praising Roberts for “playing chess” while “everyone else is playing checkers” (as Lane put it on Fox yesterday), seem not to understand that they are giving voice in fact to a deeply damning criticism of the chief justice.  The duty of the judge is to do justice to the parties right in front of him in the case at hand, according to his best judgment of the requirements of the rule of law.  It is not to play a farsighted game of “save the country,” nor to safeguard the Court’s power and prestige, nor to avoid criticism from half-informed newspaper editors.  If any of those aims supplants the decision of the case according to recognizable, defensible legal norms, then the judge has betrayed his oath and his country. 

Those who are angry at Roberts now at least have their praise-and-blame antennae tuned properly, even if, as I think, their anger is overwrought and frequently unjust.  Those who actually admire him for doing what he himself must have thought (in the admirers’ view) to be the wrong thing to do, have very strange ethical criteria.  But I continue to believe that both groups are leaping, without warrant, to the conclusion that Roberts committed some sort of knowing betrayal of his own constitutional principles.  Those who accuse Roberts of betrayal give him too little credit for courage, I think.  And those who praise him for “statesmanship” think he is consummately clever in some way that they flatter themselves, clever people that they are, for having discovered.  But if they have discovered his gambit, he wasn’t so very clever, was he?  In fact, he was really dumb, throwing away the authority of his office by behaving politically in order not to be seen to be behaving politically.  (One gets a headache trying to be as clever as these clever people.)

The editors of the Wall Street Journal at least do Roberts the honor of directly engaging his arguments on the taxing-power issue, and give the back of their hand to the “statesman” or “John Roberts-as-Daniel-Webster school.”  But then they still stumble into the fallacy of the false dilemma.  Because they are not persuaded by Roberts’ reading of the statute or his understanding of the power to tax, they are unable to credit the possibility that he is persuaded by the arguments he made in his opinion.  Hence they conclude their long editorial by saying that he “behaved like a politician” and “failed th[e] most basic responsibility” of the Supreme Court.

But the big splash of the weekend was made by CBS’s Jan Crawford, who reported (with unnamed but very well-placed sources) that Chief Justice Roberts did indeed side with Justices Scalia, Kennedy, Thomas, and Alito about the constitutionality of the mandate at the initial conference following oral argument, but that some weeks later, as he worked on his opinion, he changed his mind and decided that the mandate could be upheld as an exercise of the taxing power.  Many people have seized on Crawford’s report as confirmation of some kind of “betrayal” or “statesmanship” thesis.  Others have wondered, with good reason, how on earth she got such inside dope within three days of the ruling.

But what does Crawford actually claim to know?  Just the following:

  • that Roberts held one view in March, and a different one in May;

  • that one or more of the four conservative justices, notably including Kennedy, tried to win him back to their view;

  • that a month of trying to persuade him failed;

  • that Chief Justice Roberts “pays attention to media coverage.”

That’s it.  Sadly, for such a talented (and obviously well-placed) reporter, Crawford seems to work hard to achieve a certain effect in her story, namely that Roberts decided as he did for reasons that had nothing to do with the merits of the arguments in the case.  But there is one commendably honest admission (in the 21st of 60 paragraphs) on Crawford’s part that “It is not known why Roberts changed his view on the mandate and decided to uphold the law.”

Exactly.  She doesn’t know, and so far she has come closest to finding out.  As Ed Whelan rightly noted on Friday, “There is certainly nothing inherently wrong with a justice’s changing his position during the opinion-writing stage (or any other stage) of a case.”  And what would be our first stop if we wanted to find out why a justice decided a case as he did?  Why, if he happened to write an opinion in the case, start by reading it and crediting the possibility that he means what he says.

The Supreme Court is a curious institution.  Its internal deliberations are private, secret, and closely held (or were, until someone blabbed to Jan Crawford over the weekend).  When its deliberations are concluded, it then issues written opinions that it intends its readers to take as expressing the actual reasons why the justices decided and voted as they did.  This is the opposite of Congress, in a way, for in the legislative process, where a great deal of debate is in the open and practically nothing said behind closed doors is held closely for long, what eventuates in the form of actual decisions–namely acts of Congress finally voted upon–is often unaccompanied by any explanatory material at all or any coherent account of itself (or, if such material exists in certain committee reports, it is not always to be given much credence as really explaining congressional voting behavior).

This morning I reread the portions of Chief Justice Roberts’ opinion, and the dissenters’ opinion, pertaining to the taxing-power issue over the mandate.  The second time around, I am more convinced than ever that Roberts has a fully plausible case that can be defended on principled grounds.  That is not the same as an endorsement of its merits on my part, over against the dissenters’ view.  But I do think that people might, just might, give him some credit for doing his duty to the rule of law as he understands it.  The intensity, passion, and frequent fallaciousness of the criticism aimed in his direction suggest that for many of his critics, it has always been the result that matters–the fall of ObamaCare–rather than the integrity of legal reasoning.


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