How Supreme Court Really Decides

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.

Ron Paul and Newt Drop Out, Endorse Romney

Both Ron Paul and Newt Gingrich have been heard recently complaining about all the "establishment money" outspending them, and to a liberal like me, this sounds like an argument for campaign finance reform. But coming from these two gentlemen, it qualifies as an endorsement of Mitt Romney. Let me explain.

Consider Ron Paul's position on campaign finance reform. Whether in the form of public financing of campaigns or other rules governing the finance of campaigns, his position is that it's UNCONSTITUTIONAL.

To those who don't know conservativespeak, "unconstitutional" does not simply mean disallowed under the constitution as currently applied or not legally valid without an amendment to the constitution. That's the liberal definition of unconstitutional. In fact -- you may find this shocking -- in conservativespeak it does not even mean counter-to or in violation of the correctly interpreted currently active text of the Constitution! In conservativespeak, you see, the word "unconstitutional" means "fundamentally evil and wrong despite the appearance of being morally right." For example, protecting people from financial fraud -- it seems like a morally right thing to do, but financial fraud is also highly profitable -- thus, such a regulation would be termed "unconstitutional". See how it works? In crazytown, the world is at a crucial juncture demanding radical change. Without it we are all DOOMED. And also, it's a moral imperative that Mitt Romney be able to leverage all that "establishment money" to grab the reins of power and keep us on that path to doom.

Welcome to crazytown.

But Newt Gingrich's position is a little more subtle. Like Paul, he hails from crazytown, but he also keeps a house [and a mistress] in DC. For Newt, it's not just a matter of constitutionality -- unlimited political spending is a moral good in and of itself! Perhaps because living in DC opens ones eyes to the importance of special interest money in helping leaders to sort policy priorities. And I'm not referring to the big bucks he made lobbying on behalf of Freddie Mac in the years leading up to the financial crisis he would then blame on Freddie Mac's cozy position in the halls of power. I'm referring to his reaction to the Citizen's United case. In an interview the day of that decision, Newt had this to say:

Well, I'm delighted. And I think I would say that the real campaign finance reform under our Constitution would be to allow anyone to give unlimited amounts of after-tax money.... I'm saying that it allows you to have a middle-class candidate go out and find allies and supporters who are able to help them match the rich....

Well, if that's your position, Mr. Gingrich, then the failure of your Super PAC to raise enough money to match Mitt Romney's Super PAC is a triumph for our system of government! It sounds to me like an endorsement of Mitt Romney.