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:
"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..."
"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..."
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...
#shouldread #orangehairedbaboons #judicialreview