Three Reminders from the ACA

Having posted somewhere between 6,000 and 7,000 links about the ACA (estimated), I don't think I need to really wade into the decision. It would be, at best, redundant. So instead, a brief post today on what the ACA decision tells us we ought to keep in mind when we argue about the role of law and courts in our society. It serves as an excellent reminder that as much as we like to think of the high Court as a bastion of justice - at least in our rosier moments - it is a part of our political system, embedded among other political structures and institutions and subject to many of the same pressures and influences. =

The Supreme Court Hears a VERY Select Sub-Set of Cases
It's true that a simple model based on the Justices' political affiliations can predict 75% or so of Supreme Court outcomes. A friend of mine likes to push the obvious conclusion to its logical extreme and say that this amounts to proof that law doesn't mean anything, that political party and politics determine everything, that law is merely the continuation of politics by other means. I often have to remind him that while no one seriously contends that law as a phenomena exists in a world removed from politics, using Supreme Court cases as evidence in this case is a poor set to use. Cases reach the Supreme Court because they represent difficult legal questions; if they were easy cases, the would have been resolved at the District level - or at least in the Circuits. Usually, by the time they reach The Nine, it is because they have difficult constitutional questions, the answers to which reasonable people can disagree upon.

So when we start to complain that the Court is merely playing politics, it would serve us well to remember that the questions before it are hard ones, and ones to which there are multiple justifiable legal answers. We might disagree with an opinion - and it seems to me that a lack of a legal education is no barrier to closely held views on a matter - but we are dealing with legal experts with a variety of legal philosophies that can lead to any number of logical justifiable (if occasionally erroneous) decisions.


SCOTUS Decisions are Always a Mix of Law, Policy, and Politics
Those who watch the Court from an institutional perspective realize that when a legal issue has no clear answer, other considerations will step into the fold. Whether it's a political leaning, a legal preference, or a preferred policy outcome, second order considerations take the limelight when legal considerations don't yield an obvious answer. This isn't necessarily a bad thing. Let's say you're putting together a rec-softball team, and that you have decided that the way you want to determine which of your friends fill the ten spots is by skill as a softball player. What happens if two friends you're thinking about for the last spot are equally good softball players? If the thing you're supposed to use to make these decisions doesn't yield an obvious answer, wouldn't you be justified in using other rubrics? How good are the two friends? How well do they get along with the rest of the team? Which friend is more likely to bring good beer to the games? Even if you've said that the only thing you want to consider is softball ability, other factors may have to be considered. Skill at air guitar, for instance.

By the way, I want no part of your softball team; it sounds like you take it way too seriously.


Judges Care About More than Political Outcomes
But this is not to say that judges faced with difficult legal questions simply plug in their preferred policy position, dress it up in legalese and hand it down. I think that, if nothing else, John Roberts opinion shows us that judges care about more than simply how close an opinion is to their ideal point. A few possibilities:

Judges Care How the Court Looks

I think Roberts clearly cares how the Court looks to the public, and part of this is not overturning an administrations figurehead piece of legislation. I think he knew that overturning the ACA would put the Court not only in a political fight, but at the center of an inter-branch political fight. It is part of the Court's constitutional duty to overturn unconstitutional provisions no matter how popular they are in the other two branches, but when it's as big a piece as the ACA, the presumption is often to uphold and not get too deeply involved in groundbreaking policy. This is partially accomplished by the legal rule of interpretation saying justices ought to use any available interpretation that renders legislation constitutional, but I think it goes beyond this. I think justices care about how the court looks to the public, and in this case I think Roberts thought striking down such a monumental law would make the Court appear as if it were overstepping its boundaries.

Judges Care How They Look

Two quick points on this. One, reading even the first three pages of Roberts' opinion makes it clear that he knows it's a big deal. He knows that this is going to be read widely and discussed endlessly for the coming months and will be destined to be a staple of Con Law classes for a long time. In that spirit, it's a very clear opinion unusually free of legal jargon. It's written for mass consumption, not a narrow class of the legal commentariat. Knowing that one's words were going to be such a big deal would really make one reflect on them, I think, and not just their style. If you were in his chair, wouldn't you care about not appearing to be partisan? Which brings me to a second point: even if you were an absolute partisan hack, you would probably still care about not appearing to be a partisan hack. This in itself would constrain the options open to you as you considered and authored a judicial opinion. The overlap between "legal opinions that look well reasoned enough to escape hackery" and "legal opinions that achieve my political goals" might yield a much smaller set than the second group alone. If the first consideration is important, even that will prevent you from just writing whatever you want (lifetime appointments be damned).

Judges Think They're Doing More than Just Politics

Let's put aside the discussion of whether judges actually are doing anything more than politics in a different guise. I think they are, others disagree, but regardless, it seems clear (to me, anyway) that judges themselves think they are doing something more, something different, something special. Even if they are in the throws of especially rapacious self-deception, the mere delusion would limit the opinions a judge or justice was able to write while maintaining the facade. Again, I think they actually are doing more, but the point is that even if all the "law" stuff is just a self-constructed mask, the mask still matters. Otherwise we would see a lot more opinions that just said "I think this law sucks and I'm chucking it. Tough." There mere fact that judges would feel compelled to find legal cover would limit the kinds of opinions they could author.

At bottom, yes, the Supreme Court is a political institution in which political considerations play a role. No shock here. But as I hope I've at least begun to convince you (if you needed convincing) it's not merely a political institution. A lot more goes on in chambers than raw, pragmatic, policy maneuvering. If nothing else, the ACA decision is a good reminder of why some of those things are.