Professor Murray Dry, my Middlebury colleague and an excellent legal scholar, takes issue with portions of my recent posts regarding the Roberts Court’s ruling on the Affordable Care Act (ACA). Murray writes, “I want to quibble a bit over your statement that ‘the Supreme Court is a political institution….’ In light of the statement in your previous blog, to the effect that ‘Roberts’ decision is best understood institutionally, in terms of its implications for the Supreme Court’s status and independence,’ rather than in terms of the ‘attitudinal’ and ideological approach to the Court, would it not be more consistent with your full position if you were to add ‘in part’ in your sentence about the Court as a political institution? After all, the institutional interest that you identify with the Chief Justice depends on the Court’s being perceived as something more than another political branch of our federal government, and perhaps that perception is best produced by the Court’s acting in a judicial manner. In this case, that means giving Congress the benefit of the doubt on the less coercive of two legislative powers.”
In order to respond to Murray’s main point regarding the Court as a political institution, I put aside for now the question of whether Roberts actually gave Congress “the benefit of the doubt” or – as Jack Goodman suggests to me in a separate email – he instead substituted his own interpretation of the Constitution for Congress’ (much to Kennedy’s chagrin). Murray raises an excellent point – if Roberts’ goal in upholding the ACA was in part to create the perception that the Court was above partisan politics, then didn’t he act in what Murray describes as a less political and more “judicial manner”? Indeed, isn’t it in the Court’s political interest to act “judicially” as a more general rule of thumb?
My response is that I think Roberts was, in fact, acting quite politically in trying to create the perception that the Court, in upholding the ACA, ruled judicially, without regard for partisan politics. In short, finding a constitutional basis to support ACA was in the Court’s institutional interests, and thus good politics. This is not to deny, however, Murray’s notion that there was an element of “judicial” reasoning in Roberts’ ruling as well. After all, his justification for upholding the individual mandate was rooted in his reading of constitutional law. I don’t think his detailed footnoting of the relevant case law was mere window dressing.
In short, Murray is right – there are elements of both political and judicial reasoning in Roberts’ argument. In making this claim, I hew closely to the argument advanced by my former Harvard colleague and now professor of law at Syracuse University Keith Bybee in his book All Judges Are Political – Except When They Are Not. In the book, Bybee takes note of an apparent contradiction in public opinion: most surveys show that Americans believe that rather than make decisions on the basis of some independent and commonly understood set of legal principles, judges at all levels instead substitute their own political preferences when rendering judicial rulings. And yet, these same surveys indicate that most people believe that judges can rule “impartially” to reach decisions based on a reasonable reading of the law, separate from their own personal preferences. (For what it is worth, when studying judicial decisions, scholars find support for both views.) Indeed, consistent with Bybee’s argument, note that most people continue to hold the Supreme Court in higher regard than the Presidency or especially Congress. How can we reconcile this apparent contradiction? Bybee’s answer: We can’t. Or, more accurately, we shouldn’t try. In fact, he argues that the stability of the judicial system depends on people embracing both perspectives simultaneously. As he writes elsewhere on this topic, “The resulting system endures not in spite of the contradiction between instrumental action and impartial principle, but because this contradiction suits the law to the people who are governed by it. This arrangement is not necessarily connected to justice. The judicial process is stable because it recognizes and responds to competing human needs, not because it ensures that that we live in a fair society….Thus the law is made to serve different purposes: on one hand, the law is pressed into service by interested parties trying to solve their problems; and, on the other hand, the law is shaped into a rational structure in order to give ‘the story of government’ meaning. The law operates in both registers at the same time, even though they point in incompatible directions.”
The notion that judges clothe their politically-driven decisions in the rule of law in order to render those decisions more acceptable may struck some as giving off more than a whiff of hypocrisy. Why not recognize that the Courts are political actors and treat them accordingly by, for example, making judges stand for election, or at least have them subject to periodic recall? (In fact, that is standard practice in some states.) Bybee’s argument suggests that we are better off by viewing the Court as both political and judicial, rather than trying to push our understanding to either extreme. By way of analogy, consider the rules of courtesy that govern how we interact with one another. When you greet me by asking, “How are you doing?”, you do not expect me to answer with a detailed recitation of the current state of my life – the bad ankle, the endless bluebooks, the overwhelming workload, the car repairs, and don’t get me started on the Roger Clemens’ decision! Instead, common courtesy dictates that I respond with a simple summary statement, such as “I’m fine. And you?” Nor am I insulted by your expectation that when you ask how I am, you really don’t want to know, at least not in detail. We both understand that this exchange serves a purpose – it is a common courtesy that although in some sense hypocritical, nonetheless greases the wheels of social interaction in a way that makes us all get along. We may sometimes wish that people would do away with these little niceties, and instead always speak the truth. (Yes, in fact that haircut was a dreadful mistake! What got into you?!) But, shorn of the norms of courtesy, our social system would break down in short order.
So it is with our understanding of the Courts. Roberts’ ruling was almost certainly political, in the sense that it strengthened the perception that the Court is, in fact, a judicial body – not a partisan one. But that sleight of hand – hypocritical though it may seem – is also a fundamental reason why we abide by the “rule of law”, and why we continue to view the Court more favorably than we do other political actors.