Bench Memos

Re: The Chief Don’t Get No Respect

Matt’s thoughtful post provides me the occasion for some related comments:

1. As someone who speculated yesterday about possible evidence in the opinions that the Chief Justice changed course, I will emphasize what I should have thought to make clear previously: 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. On the contrary: a justice’s duty is to get the case right, and if that entails a change of mind, or two, or more, so be it.

(Unlike Matt, I think that there is substantial—but far short of compelling—evidence that the Chief did change course and that he may well be the author of most of the prose in the joint dissent. For various reasons, including being chastened by my recent poor record in reading the tea leaves, I have no interest in spelling out a full case (some of which includes evidence and insights that other experienced Court-watchers have sent me and that I haven’t set forth).)

2. The more implausible that one regards the Chief’s conclusion that the individual-mandate-with-penalty provision can instead be read as a tax on those without insurance, the more understandable it is to speculate about the Chief’s having indulged broader, shall we say, considerations.

In this regard, I’ll note on the Chief’s behalf that the Chief isn’t stating that the provision is best read as a tax. On the contrary, he specifically states that the “most straightforward reading of the mandate is that it commands individuals to purchase insurance.” Instead, invoking the doctrine of constitutional avoidance, he is addressing only whether the reading of the provision as a tax is “fairly possible.” It’s far from clear how deferential that standard is (how feeble, in other words, a reading can be yet still be “fairly possible”), but the widely ridiculed statutory interpretation that the Court adopted three years ago in the NAMUDNO case (in an opinion by the Chief that all the justices other than Justice Thomas joined), in the context of constitutional avoidance, arguably provides support for the proposition that the standard is a remarkably low one.

Lest I be misunderstood: I am not embracing the Chief’s position on this issue. The joint dissent makes a powerful case that the provision can’t plausibly be read as a tax.

3. In the spirit of Ambrose Bierce’s The Devil’s Dictionary, I offer this entry in the Left’s lexicon:

JUDICIAL STATESMANSHIP, noun phrase. A term of approval reserved for a decision by a conservative judge that reaches a result intensely desired by the Left, especially if the Left regards the judge’s legal reasoning as wildly implausible.


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