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| A more realistic model of justice |
People have an idealistic mental model of how a Supreme
Court justice might arrive at judgments by carefully pouring through the
question and the legal principles to arrive at a conclusion. Most people have
that model, but almost nobody actually believes it. Others assume that ideology
is the entire explanation and that the opinions of the court are just
voluminous ideological screeds. They explain away unexpected decisions as
shifts in a judge's ideology or revelations about a judge's true ideology.
A more realistic model for how justices decide is a mixture.
More likely what happens is that a judge begins from the conclusion they would
like to reach and then they attempt to construct a solid justification for it.
They may do the same for alternate conclusions, but they almost certainly spend
less effort looking to justify the conclusions they don't want to reach.
Perhaps they assign a clerk to construct an alternate conclusion so they can
then ignore it.
Recent leaks combined with the contents of a very mixed
opinion constructed by Justice Roberts reveals the reality in more detail. Too
many people with opinions seem not to know that Roberts actually did strike
down the individual mandate, making clear that direct criminal penalties to
force commercial activity is an overreach of federal power -- he just upheld the
enforcement provision as a legitimate free-rider tax. We now know that Roberts
sided with a 5-4 conservative majority to strike the mandate, but as he was
constructing the majority opinion, he made a subtle change that flipped that
picture. By the time he was done writing it, he had finished writing the 5-4
liberal majority decision. How did that happen?
It shouldn't be too big of a shock if you read the law
closely. Suppose you imagine writing the decision to strike down the individual
mandate -- if you don't have a basic understanding of law, stop here for a
refresher on the commerce clause, the necessary and proper clause, the taxing and
spending clause, and the sixteenth amendment....
Back to the story, suppose
you've already decided to strike down the individual mandate as "not a
valid exercise of Congress’s power under the Commerce Clause and the Necessary
and Proper Clause" and you've even essentially finished constructing that
part of the decision but you are now deciding how to "sever" the
individual mandate from the rest of the bill in writing the conservative
majority decision to declare it unconstitutional. At least one extreme right wing judge who saw
the case before it reached the Supreme court decided that the mandate is inextricably linked to the entire law
and thus the entire law must be voided, and people who understand the policy
understand that it is linked to the provision that prevents insurance companies
from denying coverage based on pre-existing conditions, but the role of the
court is generally to rule narrowly and leave policy decisions to the other
branches of government. The court severs narrow provisions of a law based on
what is possible and constitutional, not based on what is good policy.
So where can you sever it? Even for one who has already
decided to strike the mandate, it's not entirely obvious. You have to ask a few
questions. Where does the constitutional part end and the unconstitutional part
begin? At some point, the exercise probably involves reading the law.
One colorful approach might be to start by striking as narrowly as possible just a few words
and phrases that make it clear that it's unconstitutional. In this case, the
words "requirement" and possibly "penalty" seem to be the
ones [the word "mandate" is not actually found anywhere in the
"Individual Responsibility" section of the law]. From there, strike any
sentences or paragraphs that have become too nonsensical to implement. Finally,
any parts of the law that become physically or logically impossible to
implement without the stricken parts are also stricken. What is left?
Another approach is to imagine the law written in an alien
language and you are an observer incapable of learning the language but able to
watch every aspect of it being enacted and enforced. From there, strike any
operations, behaviors, or enforcement actions that violate your concept of constitutional
federal powers and then write whatever law is left in your own language to
reflect what you see as its true meaning. What is left?
There are plenty of other ways, and I doubt these colorful
approaches actually reflect Roberts' thinking, but it is interesting to note
that they both lead to exactly the same conclusion! The first approach leads
one to "strike the mandate" but leave its enforcement in place as a tax
incentive. The second leads one to declare that it always was nothing more than a tax incentive, but because of the misleading
"requirement" language, the court voluntary offers the opinion for future laws that such a mandate would
be unconstitutional.
In other words, Roberts started from the conclusion to
strike the mandate and his position never changed! The only
thing that changed was his discovery that the free rider tax can
be construed as a tax, severed from the mandate, and that the only
justification for striking the tax under that interpretation would be purely
ideological and not legal! And what ideology? The individual
mandate was first proposed by conservatives as a "tax on free riders
to promote individual responsibility," it was not popular with liberals,
Newt Gingrich promoted it, and Romney implemented it. Many liberals still see
it as a giveaway to the insurance industry, and usually it's the conservatives
who bend the rules to protect corporate power and profit. Lucky for Roberts, he was not asked to resolve that question.
So he didn't change his mind, but merely made a discovery. When
he made that discovery, he certainly brought it to the attention of the other
conservatives. How many of them do you think cared about the legal reasoning? Roberts
was not arguing, he was tasking them with the job of rationalizing their pre-determined
dissent as he was giving up that task. In Gonzales v Raich, even Scalia decided that the Commerce
Clause and the Necessary and Proper Clause could be used by the federal
government to criminalize non-commercial behavior legal within a state if indirectly necessary for other measures to have force! He cited
precedent, though he has since wavered in his support for that precedent, but given that his
decision in Gonzales actively denied medical treatment, perhaps the true deciding factor
is that he opposes expanded access to healthcare. Maybe not, but he makes it
way too easy.]
One might be surprised that Roberts was the only one who
changed his mind until you realize that he was the one constructing the
majority opinion [the only important opinion], and it seems it was the act of
constructing that opinion that forced him to recognize the more nuanced reality.
So we have an answer, for Roberts at least. Like any other human, he is flawed.
He most certainly started from his conclusion and constructed the opinion from
there, but a majority opinion is not just an ideological screed. Scalia might wish to live in an oligarchy where all
resource allocation is decided by a ruling class of wealth elites, and he
might think it is moral and just and right, but at some point along the way,
even he would have to construct serious legal arguments to support that position
as a Justice of the Supreme Court.
