A Rare Bit of Partial Honesty in Supreme Court Reporting

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NPR had a story last night talking about how the narrative of a partisan Supreme Court is undermined by this week's decisions. On one level, it doesn't go remotely far enough. A much larger portion of Supreme Court decisions than is usually recognized are unanimous, and quite a number far along not-remotely-partisan lines, with lineups that would strike anyone who believes the narrative as unusual, but it's not that unusual for it to happen. There are certainly general trends, with the justices appointed by Democrats tending to vote together more often and the justices appointed by Republicans tending to vote together more often, but the lineups on issues that aren't political hot-button issues are often odd from that perspective. Some of the justices on both sides of the usual division are more textualist and inclined to read laws narrowly (Scalia, Thomas, Ginsburg, Sotomayor, formerly Souter), and some on both sides are more pragmatist and inclined to read laws more expansively (Roberts, Kennedy, Breyer, Alito, formerly Stevens, O'Connor). I remember a particular decision from a few years ago that was precisely on those lines. Then there are the free-speech decisions, where the justices don't line up along political lines at all. Earlier this month, one decision had Scalia, Thomas, and Kennedy aligned with Sotomayor and Kagan. The dissent was Roberts, Ginsburg, Breyer, and Alito.

The health care decision did have an interesting lineup, but what's most interesting about it is that there were actually several lineups on separate parts of the decision. Here are several issues and the lineup on each:

1. Is the individual mandate a tax? Yes: Roberts, Ginsburg, Breyer, Sotomayor, Kagan; No: Scalia, Kennedy, Thomas, Alito

2. Is the individual mandate, if conceived of as a federal law requiring people to buy health insurance, constitutional? No: Roberts, Scalia, Kennedy, Thomas, Alito; No: Ginsburg, Breyer, Sotomayor, Kagan [this one does fall according to one common partisan voting pattern]

3. Is the Medicaid expansion constitutional? Yes: same lineup as 1 above.

4. Is it constitutional for the federal government to penalize states for resisting the Medicaid expansion by taking away their previous Medicaid funding? No: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito, Kagan; Yes: Ginsburg, Sotomayor

Update: Here are three further questions that I left out.

5. Does the Anti-Injunction Act apply (which would make it impossible to challenge the law until someone has to pay the penalty)?  The Court was unanimous in saying that it does not apply.

6. Does the Anti-Injunction Law apply to all taxes, including de facto taxes declared not to be taxes by the legislature and president signing the tax into legislation?  No: the #1 majority justices; Yes: the #1 dissenting justices

7. Does the entire health care law fall if it the mandate is unconstitutional?  No answer on this question: the #1 majority; Yes: the #1 dissent


One thing that was particularly interesting is that on questions 1 and 3 the Chief Justice joined the four liberals, while swing voter Anthony Kennedy, who is usually more willing than the Chief to join those four, remained with the three conservatives in the dissent. Another was the fact that seven justices agreed on question 4. These two facts, I think especially the second, was what led the NPR reporter to notice that this decision really breaks from the narrative.

What struck me was how similar this is to what actually happened with one decision that the usual narrative takes to be one of the most bitter partisan divisions, decided for purely political reasons. That decision is 2000's Bush v. Gore, which had three questions that had different lineups.

1. Was the Florida Supreme Court's handling of the 2000 election compatible with the equal protection clause of the 14th Amendment? No: Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer; Yes: Stevens, Ginsburg

2. Is Dec 12 the date recounts need to be settled, and thus the best remedy is to go with the original vote count rather than allow recounts beyond Florida's final date? Yes: Rehnquist, O'Connor, Scalia, Kennedy, Thomas; No: Stevens, Souter, Ginsburg, Breyer (this was the part along typical partisan lines)

3. Did the Florida Supreme Court violate Florida law? No: Stevens, Souter, Ginsburg, Breyer; Yes: Rehnquist, Scalia, Kennedy; uncommitted: O'Connor, Kennedy

Seven justices agreed that there was an equal protection violation, and five agreed that Florida had set a date for recounts to be ended, a date that wasn't met. Four disagreed with the latter majority and wanted a recount to go beyond the date the majority had recognized as Florida's required date. But the important constitutional question of a violation of equal protection rights was supported by seven justices, and this is just about never recognized in those who put forward the usual narrative on this case. I've long thought that if anyone was being judicially activist here, it was the two justices who saw the constitutional problem but who refused to recognize Florida's deadline for recounts to be done by. But the conservatives and moderates usually instead get blamed for deciding the case based on their poltical views. It's an interesting case of two liberal justices recognizing that the conservatives had the constitutional question right, just like in the Medicaid part of the health care cases. It's refreshing to see a mainstream media reporter recognize it with the health care case. It would be nice if those who put forward the usual narrative would recognize something similar with cases like Bush v. Gore.


I have to say, it was utterly galling to see Roberts cave in the face of the Democratic political/media strategy of bemoaning threats to the "legitimacy" of the Court. Notice how the conservatives are always blamed for political polarization. And yet on any subject of crucial importance to the liberal party line, we always know exactly how the 4 liberals will vote. Indeed, everyone on both sides of the spectrum had zero doubt what their ruling on Obamacare would be. On the other hand, on issues of critical importance to the conservative party line, we never know where the "conservative" justices will come down. And somehow this is evidence that the conservatives are playing politics and threaten to delegitimize the Court. And then we have to listen to the press rub salt in our wounds by praising Roberts for "putting politics aside" when in fact he made the ruling precisely because of politics, cravenly doing what he considered politically expedient rather than constitutionally correct.

It's infuriating and dispiriting, enough to tempt a conservative give up all hope on the political and judicial process. You spend literally decades trying to build up a majority on the Supreme Court, convince them of the correctness of your legal arguments, and then have your "friends" stab you in the back and snatch defeat from the jaws of victory in order to win the favor of an small elite that despises the rule of law. The only possible solution I can see is to demand nominees who not only have a general history of ruling according to conservative principle, but also are known to despise liberal political philosophy and the liberal elite (i.e. Scalias and Thomases). (And even if someone like Romney wins, do we really think they'll do this?) It's quite clear that having people with the right principles is not enough; they are still apt to cave when the liberal elite start their threats. Only someone who is immune to their folly can be counted on to follow through on principle and deliver when push comes to shove.

(Also, it's becoming clear that we'll need about 7 "conservatives" on the Court to overcome this squish factor and be a threat to any of the most valued liberal sacred cows.)

That's a bit of an uncharitable motivation, isn't it? How about the possibility that Roberts actually thought this was the right way to go? It's not as if he has any interest in propping up the president who has repeatedly and consistently impugned his motives, and it's not as if he has any desire to cater to that by actually deciding things in ways that don't fit with how he sees the law. So what is it that you're actually attributing to him? Do you think he was lying when he gave actual arguments that this is what the precedents of the court and meaning of the various texts lead to, given the principles that he states? He's got arguments for what he writes, and I have a good sense of a few places where I'm not sure he's right, but I would respond to him not by pretending he's lying when he gives such arguments but by explaining where I think he may have gotten it wrong. (The one place I think he's got it wrong is that his opinion requires taking the intent of the Congress of last term in its crafting of this bill to interpret the intent of Congress in crafting a much older law. I'm not sure he sees that problem, though.)

But his arguments do have some plausibility to them, even if he's wrong, and they are grounded in relatively conservative principles such as distinguishing between the Constituion's requirements for what counts as a tax for the taxing power and Congress's intent in crafting laws as a different basis for interpreting Congress's meaning in its laws. I'm much more disturbed by the media response to his opinion than I am by the opinion itself.

It's not as if he's ever claimed to be an originalist. He's a gradualist conservative who likes to rule narrowly, and he likes to find ways to get justices across the divide to agree on aspects of a question that allow for more unanimity. We knew this about him when he was nominated. But you're portraying him like he's Anthony Kennedy, who just decides cases based on the outcome. He's nothing like that. Kennedy is a true judicial activist, the most activist on the current Supreme Court. He happens to have a mix of liberal and conservative political views, and his swing-vote status comes from being judicially active about both. He votes with either side, depending on which result he wants. Roberts is nothing like that, and he's not the kind of Chief Justice who will decide cases deliberately the wrong way just because Jeffrey Rosen and other faux moderates criticize him unfairly as causing extreme partisan division on the Supreme Court.

There's no way a real originalist could have a hope of being confirmed unless Republicans have a filibuster-proof majority, so Roberts and Alito are what conservatives have to settle for. But don't pretend that either one ever led us to believe that they're originalists. They both denied that outright at their confirmation hearings. They're both closer to Rehnquist than to Scalia or Thomas.

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