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July 01, 2012

Reverse Jurisprudence: Arguing Backward from a Desired Outcome

OUT: Legal briefs. IN: Newspapers.

Jan Crawford at CBS reports that Chief Justice Roberts likes to read newspapers, unlike many of the other justices.

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court - and to Roberts' reputation - if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

I was telling the cob-loggers in email that in France their tradition is that judges don't party. I hope my recollection is right. French judges don't socialize much at all--at least, they avoid it at almost any cost. Their tradition is that they feel they might be called upon someday to rule on a case that touches those people, and they don't want to be influenced by their associations. For similar reasons, many of our justices don't read the newspapers. They don't want to be influenced by what people are saying.

In the case at hand, none of the district judges, the circuit judges, the attorneys, the parties, the other justices, or the general consensus of legal scholars felt the taxing power would fly. No one felt it was a serious argument. It got only a brief mention by the government's lawyer. And most were either preparing for or bracing for the ACA to be struck down. But John Roberts knew better.

From an old post:

The Rule of Law protects against man's tendency to bask in the light of his own shining intellect--to imagine himself superior to all decision makers who have gone before . . . .

So we give judges authority, not power. And we make them swear an oath to uphold the law--by definition, a thing that already exists, not one's newly minted personal views. We entrust judges with the authority to weigh the law and to apply it objectively as if blindfolded--blind to all other considerations.

. . .

Thus, there has been a growing amount of reverse jurisprudence--arguing backward from a desired outcome and twisting legal reasoning to support the view. This has nothing to do with applying law and has everything to do with the attempted use of power to exert one's will over others. These self-indulgent despots have abandoned what it means to be a judge. Their open disinterest in impartiality and upholding the law--documented easily enough--is a clear violation of their oath, and, in my view, it is grounds for removal from office.

So he read the newspapers and/or schmoozed, and after having taken the temperature of public sentiment--the liberal, east coast public sentiment--he decided the ACA had to stand at any cost. My guess is that Roberts originally wanted to strike down the mandate but keep the ACA by ruling the mandate was severable. But when the four dissenters would not go along with him on severability, he sided with the liberals and wrote a contorted decision to uphold the law. He was arguing backward from a desired outcome.

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posted by rdbrewer at 04:26 PM

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