Some Disconnected Thoughts Over the Years About Legal Realism and the Man Whom Judge Posner Calls "Disreputable": Chief Justice John Roberts

Clowns (ICP)

Today: The dirty little secret is that serious legal arguments are those that lawyers pretend to take seriously. If enough Republican hacks decide to pretend that Judge Reed O'Connor is serious, he becomes serious. My forecast? The Fifth Circuit narrowly upholds O'Connor, and then it goes down 8-1 in the Supreme Court—unless one of the Democratic justices dies or retires before the decision is announced, it which case O'Connor is upheld 5-3.

Jack Balkin wants to maintain two positions at once:

  1. "The lesson of Sebelius is that if you give enough very smart lawyers enough time to work on a legal problem, they can come up with creditable arguments for many (but not all) legal positions, even if, when the task started, the position seemed hopeless..."

  2. "I am most certainly not saying that legal argument and legal craft are mere disguises for political ideology or that they have no independent significance. I have been trained as a lawyer and I express opinions about the quality of legal arguments all the time. It is my job to do so. Thus, whether lawyers are willing to support a given claim depends on their perception of the quality of the legal reasoning and the quality of the legal arguments that can be advanced for it..."

But the second means almost nothing if "creditable" arguments can be constructed for nearly everything, and the task of law professors is then to retrospectively justify whatever the judges pick. The first means little if the legal community does have strong standards for what is a strong argument. How to resolve this? By noting that whatever gets five votes on the Supreme Court is retrospectively turned into the strongest arguments. And Supreme Court justices are very good at convincing themselves that what upholds their ideology and partisan position is in fact the best-argued and best-crafted.

Jack Balkin: Texas v. U.S: Off the Wall and On the Wall in the Age of Trump: "The judge's arguments are not even close to being persuasive given existing legal precedents. Does that mean that the position is 'off-the-wall'?... Asking whether a legal claim is 'off-the-wall' is a question of whether it is a reasonable claim, or at least one on which reasonable minds can differ.... But the perceived quality of legal reasoning and legal arguments are not exogenous from social influence...

...What moves arguments from off-the-wall to on-the-wall depends a great deal on who is willing to put their reputation and authority behind the arguments and stand up for them.... A federal judge and the President of the United States support the result in Texas v. U.S.... Much depends on whether other people will decide to add their institutional authority and influence.... The Republican Party almost immediately closed ranks in the first two Obamacare suits: NFIB v. Sebelius and King v. Burwell, and did so early on in the litigation. That meant that Republican politicians made speeches trumpeting the legal claims, the party's affiliated legal intellectuals engaged in serious intellectual work buttressing and strengthening the legal arguments, and the media organizations affiliated with the Republican Party and the conservative movement repeated and broadcast the claims. Because so many powerful and influential people made these arguments, mainstream media felt compelled to treat them as serious legal claims and this also helped support their reasonableness....

In Sebelius, the first district court decision striking down Obamacare came only after the party had already closed ranks... [But] when Republicans sought to repeal Obamacare in 2017, they discovered that there was strong public support for Medicaid and especially for protection of preexisting conditions. As a result, many Republicans ran in the 2018 elections.... If Republicans support the result in Texas v. U.S.—a case in which the Trump Administration sought to get rid of Obamacare's preexisting conditions protections, and the judge wiped out the entire bill—they will have do some fancy rhetorical footwork.... I don't doubt that they can do it.... I only question whether Republican politicians as a group will decide that this is the best approach.  We will soon find out whether some Republican politicians, instead of offering full-throated support for the litigation (as they did in Sebelius), prefer to hem and haw, change the subject, argue that the process should be left to the courts, and bide their time.

The political context is also different in another respect.... Sebelius and King became something of a crusade against the overreaching nanny state and the tyrannical Barack Obama. By contrast, Texas v. U.S. occurs when the Republicans are no longer in opposition and are faced with the problems of governance.... Likewise, the conservative movement's legal intellectuals put enormous effort into sharpening and refining the arguments in Sebelius and King.... The lesson of Sebelius is that if you give enough very smart lawyers enough time to work on a legal problem, they can come up with creditable arguments for many (but not all) legal positions, even if, when the task started, the position seemed hopeless....

It will be very important to see what Republican politicians, affiliated legal intellectuals and media do in response to this decision...

June 25, 2012: "Constitutional Moments": Five times in U.S. history the Supreme Court has eaten its wheaties and said that in the future the law will in a major way be very different—or, rather, that Americans before, including the Supreme Court, had been in error about what the law truly was and had been doing it wrong.

Call the first Marbury vs. Madison: the Supreme Court's 1803 assertion of the power that it was going to be the final arbiter—that its decisions about what the Constitution meant would be the ones that stuck. It could have gone another way…

Call the second Lochner: the Supreme Court's 1905 assertion that a late eighteenth-century Constitution enacted an early-twentieth century conception that your key liberty interest is the freedom to make whatever contracts you want to make without let or hindrance from the federal government.

Call the third the Switch-in-Time-that-Saved-Nine: the Supreme Court's 1937 assertion that Lochner was in error, and that Congress's power to regulate interstate commerce was a trump that gave it the right to regulate everything.

The fourth and the fifth are Warren Court actions: (a) in 1954 that legal racial apartheid will no longer be part of America, and (b) in 1966 that the poor will have at least some of the privileges in their interactions—both criminal and civil—with the law that the rich have always had.

You can add others: Dred Scott in 1857 as an attempt to turn the entire United States into a slave country, Roe v. Wade in 1973, the overturning of the DOMA and Kennedy on same-sex marriage. The key is that the Supreme Court moves as a political (and moral) entity—and not as a judicial entity developing and extending precedent in an arena of laws set by common-law history and legislation. And, of course, the odd thing is that since Marbury vs. Madison (1803) there is precedent that the Supreme Court can do this.

In all previous Constitutional Moments, the stakes were political, but the stakes were also large, and the stakes were fundamental: about what kind of country we were going to be. Marbury vs. Madison was about whether the Supreme Court was going to be another anti-majoritarian brake on the powers of legislative majorities that were possibly transient. Lochner was about whether freedom of contract—or freedom to exploit—was going to be a core right. SiT was whether social democracy would come smoothly or would require an economic-regulation constitutional amendment, et cetera.

The interesting thing about the Constitutional Moment that now perhaps looms is that it is the first one in which the stakes are purely partisan, and purely political. The probable Supreme Court majorities in the ACA case have shown no inclination to restrict congressional power when it is a matter of exceeding black-letter patent clause authority to provide a payoff to Disney or to prohibit the medical use of marijuana—and will show no inclination to revisit and change those decisions in the future.

Bob Drummond:

The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years. Only eight of them predicted the court would do so. “The precedent makes this a very easy case,” said Christina Whitman, a University of Michigan law professor. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”… Five of the 21 professors who responded, including Whitman, said the court is likely to strike down the coverage requirement. Underscoring the high stakes and complexity of the debate, eight described the outcome as a toss-up.

During arguments in March, four justices appointed by Republican presidents questioned Congress’s constitutional power to enact the mandate, including Chief Justice John Roberts and Justice Anthony Kennedy, who had been viewed as potential swing votes. A fifth, Justice Clarence Thomas, rarely speaks during courtroom sessions. Questioning by four Democratic appointees was more sympathetic to the provision, a centerpiece of President Barack Obama’s health-care law. “There was certainly a lot of hostile questioning by the more conservative members of the court,” said Jesse Choper, a law professor at the University of California at Berkeley who described the court as likely to support the mandate. “It’s relatively straightforward—if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.”

There was broad agreement that the ruling, barely four months before November’s presidential election, has the potential to hurt the Supreme Court’s reputation as an impartial institution. Eighteen of the 21 professors said the court’s credibility will be damaged if the insurance requirement—which passed Congress without a single Republican vote—is ruled unconstitutional by a 5-4 majority of justices appointed by Republican presidents…. Nine of the law professors said if the coverage mandate is invalidated the justices are likely or very likely to throw out several related provisions, such as requiring insurance companies to offer policies without regard to pre-existing medical conditions. Five respondents said the justices will leave those provisions in place; seven called it a toss-up...

June 21, 2012: Akhil Reed Amar Looks at the Prospect of Having Wasted His Life...: Akhil Reed Amar:

I’ve only mispredicted one big Supreme Court case in the last 20  years. That was Bush v. Gore. And I was able to internalize that by saying they only had a few minutes to think about it and they leapt to the wrong conclusion. If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty…

Fred Rodell tried to warn Akhil. He should have listened.

There has been one and only one judge who followed the law when he believed it commanded him to do things that were (i) bad policy, (ii) bad ethics, and (iii) disadvantaged his political friends: Felix Frankfurter.

June 8, 2013: Justice Roberts and Justice McReynolds: Justice McReynolds screams in anger as Chief Justice Hughes has a Constitutional Moment:

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Mr. Justice McREYNOLDS delivered the following dissenting opinion: Mr. Justice VAN DEVANTER, Mr. Justice SUTHERLAND, Mr. Justice BUTLER and I are unable to agree with the decisions just announced. Considering the far-reaching import of these decisions, the departure from what we understand has been consistently ruled here, and the extraordinary power confirmed to a Board of three, the obligation to present our views becomes plain.

The Court as we think departs from well-established principles followed in Schechter Poultry Corporation v. United States, 295 U.S. 495 (May, 1935), and Carter v. Carter Coal Co., 298 U.S. 238 (May, 1936). Every consideration brought forward to uphold the act before us was applicable to support the acts held unconstitutional in causes decided within two years. And the lower courts rightly deemed them controlling…

When you get a lawless Supreme Court decision, it is usually a Constitutional Moment—a belief by the justices that justice and the future of America requires that the law must change, a la Warren in Brown and Hughes in Jones and Laughlin—or alternatively a raw assertion of partisan advantage, as in Rehnquist in Bush v. Gore.

Yet Roberts in NFIB vs. Sibelius is neither making a Constitutional Moment nor asserting partisan advantage—the assembled Republican governors of America have gone absolutely apesh%t over Roberts's decision because it forces them to either (a) endorse ObamaCare by working to expand Medicaid, or (b) see the finances of their states' hospitals collapse.

So what is it, if it is neither a High Political Constitutional Moment or a naked assertion of partisan advantage?

June 26, 2013: Richard Posner Calls Chief Justice John Roberts "Disreputable"...:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act.... Justice Ruth Bader Ginsburg’s very impressive opinion (in part because of its even tone), at a length (37 pages) that, remarkably, one would not like to see shortened—marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted. That evidence—the record before Congress—should have been the end of this case. For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for “states’ rights.” One doubts that this actually is a primary value for any of the justices. The same conservative majority that decided Shelby had rejected a more cogent argument for states’ rights when it held three years ago in McDonald v. City of Chicago that the Second Amendment—a provision of the Constitution designed to secure state autonomy—specifically, the right of states to maintain their own little armies, the militias, against federal abolition—creates rights against states’ limiting gun ownership. It seems that the court’s regard is not for states’ rights in some abstract sense but for particular policies that a majority of justices strongly favors....

The 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder, heavily cited in Shelby... invoked the same imaginary doctrine of “equal sovereignty”, yet without actually invalidating anything, and so avoiding a dissent by the liberal justices. So now in Shelby he could quote extensively from his opinion in Northwest Austin as if to imply that really there was nothing new here—just a small and logical next step. Was that a disreputable tactic, or merely a clever one?...

Today: Shelby County was a "normal" Constitutional Moment: an attempt to change America into a country in which it would be perfectly copacetic for a legislature elected by a white majority to use clever redistricting to restrict the influence of an African-American voter to 3/5 of a white voter. The stakes were large in privileging the candidates and politics that white people in America tend to vote for. And I have no doubt that John Roberts and his posse think that such a 3/5-clause America is a better America than a votes-count-equally America would be.

The ObamaCare decisions are... profoundly different. The stakes are not even partisan. Lots of moderate Republicans at the state level—and even those right-wing Republicans at the state level who had to balance budgets—cursed Roberts for offering them the choice of whether to expand Medicaid or not. And lots of Republican legislators right now are none too happy with O'Connor. Yet the rough beast slouches forward.

The only way I can read this is that they think they have a very strong ideal interest in tearing down whatever a Black President built up—even if what he built up was originally RomneyCare...

#shouldread #orangehairedbaboons #legalrealism #democracyontrial #highighted