Tag Archives: Chief Justice John Roberts

The “Hypocritic” Oath: What The Roberts Ruling Says About How Courts Function

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.

The Roberts Decision: No Switch In Time To Save Nine?

Did Chief Justice John Roberts, in a reprise of the celebrated “switch in time that saved nine”, change his vote at the last minute to uphold the Affordable Care Act?  My colleague Travis Jacobs e-mailed me early yesterday to  note an NPR report that, contrary to what some analysts were claiming based on their assessment of the written opinions in the health care case, only three days after the oral arguments last March Chief Justice Roberts had in fact voted with the four liberals judges to uphold the ACA.   That is, Roberts did not initially write an opinion to overturn the ACA only to change his mind at the last minute, as many bloggers have speculated based on how his opinion was written. Rather, from the very start, Roberts – as Chief Justice – was intent on crafting an opinion that offered something to both the liberal and conservative wings of the Court, while shielding it as much as possible from charges of partisan bias.

Shortly after Travis’ email, other news outlets chimed in with their own version of when Roberts’ made his decision. According to this CBS News story by Jan Crawford, Roberts had, initially, agreed to strike down the ACA, but he soon reconsidered and decided to uphold it, choosing to write the majority opinion himself.  That majority decision, according to Crawford, was due on June 1, which gave the dissenters until June 15 to draft a response which was written by Kennedy and Justice Scalia. In this version, then, Roberts appears to have decided relatively early to uphold ACA.

The dispute over the timing of Roberts’ decision is interesting because it reminds us that the Supreme Court is a political institution whose members often draft opinions in ways designed to attract maximum support with the goal of building a winning coalition. That is, they do not come to a decision as nine individuals, each acting independently to divine the true constitutional implications of a statute based on their own readings of the relevant case law.  Instead, they consider what their colleagues are saying, both as a means of coming to their own verdict, but also with an eye toward anticipating and shaping the final Court ruling. In this vein, it would not surprise me if all three sets of opinions – Roberts’ majority holding, and the two sets of dissents – were all crafted with an eye toward staving off defections and picking up additional votes.  Roberts, of course, with an interest in portraying the Court as above politics, wanted to avoid another 5-4 decision, while Kennedy needed a 5th vote to overturn ACA in its entirety. For her part, Ginsburg couldn’t be certain that Roberts’ vote to uphold would stand, so she wrote in the possibility that he might switch his position.

If true, how might have this sequential process of coalition building influence the wording of the justices’ opinions?  Note that Ginsburg’s dissent (all references to the justices’ opinions are from the final decision here) repeatedly addresses the Chief Justice’s arguments regarding the commerce clause, in often scathing tones.   The portions of her dissent discussing the “vegetable state” that I alluded to yesterday are particularly biting.  In contrast, as far as I can tell, Kennedy’s dissent barely mentions the Chief Justice or his arguments at all. Instead, he typically directs his response against “The government and those who support its position” and spends most of his time addressing the Solicitor General’s oral arguments, rather than Roberts’ majority opinion.  Indeed, after eviscerating the government’s claim that the mandate is covered by the interstate commerce clause, Kennedy dismisses the tax rationale that is the heart of Roberts’ defense by saying, in effect, that when passing ACA Congress called it a penalty, not a tax. Moreover, its provisions are those associated with a penalty, not a tax. As Kennedy writes, “We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classi­fied as a tax an exaction described in the legislation itself as a penalty….we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exac­tion a ‘penalty.’ Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in§5000A(b) a ‘penalty’…What counts is what the statute says, and that is entirely clear.” And later, he warns, “Impos­ing a tax through judicial legislation inverts the constitu­tional scheme, and places the power to tax in the branch of government least accountable to the citizenry.” That is, to borrow my analogy from yesterday, if it does not walk or quack – it is not a tax.

As I noted yesterday, some bloggers believe the difference in tone suggests that Roberts initially sided with Kennedy and the three conservatives, but then was persuaded late in the game to switch to uphold ACA.  Crawford suggests in her CBS times piece that Kennedy and the three conservatives decided, at some point, to stop engaging with Roberts’ argument altogether.  But as Orin Kerr warns, consistent with Travis’ comment, Roberts might have supported upholding ACA almost as soon as the oral arguments ended.  The different tones adopted by the two groups of dissenters might simply reflect the compressed time schedule under which the justices were forced to come to a decision on a very important and very complex case.  Assume that Roberts decided shortly after oral arguments to uphold the ACA.  He then worked carefully to craft an opinion designed to reach out, in part, to Kennedy in the hope of getting at least a 6-3 vote, rather than the less politically appealing 5-4 split decision. The dissenters, pressed for time to make the alternative case, begin drafting their response even before seeing Roberts’ majority opinion, which is why they direct so much of their opinion against the Solicitor General’s oral argument.  When Ginsburg finally sees Roberts’ draft, meanwhile, she can’t be sure that he will hold his ground, so she focuses all her firepower on critiquing his interstate commerce clause argument, in effect trying to win a fifth vote (perhaps from Kennedy.)

I don’t know when Roberts arrived at his decision, or whether he is, in fact, merely the latest Justice Roberts to “switch in time to save nine.”   But I am confident that he crafted his decision – as did each group of dissenters – not just on a reading of the case at hand within an understanding of the constitutional issues, but also with an eye toward building a winning coalition with very little time to spare. In this sense the Court, as an institution, is less like a legal temple housing priests in robes, and much more like the backroom in City Hall.