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Wednesday, May 23, 2012

To Whom are the ACA "Positioners" Speaking?

Mark Tushnet raises, much better than I could, a question that has certainly been nagging at me these past few weeks if not months now. (He does so here as well.) What is the point of the countless online posts and articles from Jeffrey Rosen, Randy Barnett, Ilya Somin, several Balkinization posters, and so on that came after both the oral argument and the vote in the ACA litigation?

We might divide those posts into two categories.

The first consists of more or less substantive arguments about what the Court might or could say in an opinion. Some of them have been quite interesting. I'm frankly not sure what the point of any of them was. The tone of many of these posts, at least in my view, was neither highly partisan nor especially disinterested. They read at least a little as if the writers were trying to influence the Court's opinion(s), but that prospect seems unlikely, especially given the timing, although perhaps the writers hope to influence the course of a paragraph or two here and there. Really, though, they gave me a sense of bewildermant about audience. Of course one can write for oneself and perhaps that's what they're doing, and then one can write for the best reason of all -- money, or substitute goods -- and perhaps that's all that was going on; a writer's gotta write. But usually a conversation presupposes a recipient of the communication, and that seemed oddly ambiguous or lacking here.

The other set of posts have been thick on the ground lately: posts and articles about how a decision in this case will affect the legitimacy of the Court or the reputation of the justices, or how public opinion on the ACA will intersect with such a decision, and so on. Mark writes that "[t]he comments or predictions about the Court's reputation and the like are just that -- comments and predictions." That's true as far as it goes, but as he acknowledges, there's something more going on here: "Maybe it's softening the battlefield (by both sides) in anticipation of the Court's decisions, laying out the themes that both sides expect to use after the decisions come down. 'The Court's a captive of partisan Republicans"/"It's obnoxious [again, one of Parker's words] to criticize the Court for partisanship.'" There is, indeed, a sense that these comments are aimed at influencing something or someone, which after all is a primary purpose of communication in general. But at what or whom? And is there anything unsavory about doing so, or is it perfectly "legitimate?"

The least cynical answer, I think, is that the discussants are talking to themselves and each other, for no other particular reason other than that that's what writers do. Blogs need to be filled; magazine articles and columns need to be filed; so why not write about what interests the writer or the audience. That's fine, I suppose, or at least commonplace (and one excellent reason not to get too invested in such discussions; there is nothing new under the sun and a new conversation will take its place tomorrow). But if that's all that's going on, the tone of those posts strikes me as odd. Questions of this sort are largely empirical and can be addressed without trying to influence the result or the course of the debate; but everyone writing writes as if they have a dog in the fight. 

Another possibility is that the commenters are trying to influence the justices or the clerks. This, I suppose, is what has given rise to all the talk of "intimidation" and so on. It has not escaped notice that if this is "intimidation," then many of the counter-posts also constitute intimidation. (Viz., Randy writing, in a post criticizing the "left" for threatening to "delegitimate" the Court, that "[t]here is no escaping the fact that the entire Affordable Care Act is deeply unpopular and any decision to uphold it will not be well received by the public.") I can't speak to the likelihood that such efforts would succeed. I hope they don't, on the whole. I don't think such efforts are wrong per se. If that's what's going on here, though, I would say that the reader who is neither a justice nor a law clerk is better off discounting strongly such posts given the evident partiality of the writers, and just ignoring the whole conversation, which has not been terribly useful or informative.

That leaves the possibility that Mark raises, which is that the writers are speaking primarily to opinion-makers and secondarily to the public: that all this is a matter of trying to set the terms of the discussion going forward, and particularly the political script for each side to follow. In such a scenario, the arguments made on either side may (and probably must) be plausible or even true, but their plausibility or truth is almost beside the point. The point is to determine in advance how the political conversation will run.

I'm not a total naif about this, but it still strikes me as troubling. For some of the individuals involved, there's a clear stake involved in this, either because they're political partisans or because any and every divisive issue is an opportunity for fund-raising, seeking solidarity goods, and so on. ("Armageddon is nigh; click here to give us money to fight against it.") For others, especially scholars engaged in such arguments, the best one can say, I think, is that they're taking a vacation from being scholars to write such posts, and that we're more than welcome to discount all their subsequent scholarship and blog posts as much as we see fit. (How you characterize Rosen is up to you, although it seems to me that by having more than one hat he ends up raising questions about all of them.) 

I suppose I can understand the desire to influence public opinion on political matters--although it seems to demonstrate a decidedly non-scholarly lack of a long timeline not to write with a sense that these scripts were all pre-written anyways and will be succeeded in time by equally predetermined scripts. As a scholar, though, I think our job is to witness and analyze such efforts in as disinterested a fashion as possible rather than to engage in them. I don't think politics is absent from law, nor that it should be. But I do think it's a constrained form of politics, and that engaging in a broader form of politics aimed at law is not a job for legal scholars. Perhaps I am a naif at that.   


Posted by Paul Horwitz on May 23, 2012 at 10:23 AM in Paul Horwitz | Permalink


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This reminds me of the commentary on Fallon's amicus briefs article. Fallon says, more or less consistent with Paul's view, that you should be a scholar when you're writing a brief. Brian suggests that professors may have an important role to play in supporting a position that is consistent with their views, even if sometimes without the scholarly frame.

Posted by: anon | May 24, 2012 1:43:30 PM

Thanks, Paul. I think maybe our differences are mostly cosmetic (e.g., you wear a hipster t-shirt much better than I can). For instance, I generally agree with you that a good scholar should keep her scholarly caution and add all the appropriate caveats no matter who her audience is. And I think that it's our willingness to recognize our own likely fallibility that distinguishes "informing" from "shaping."

The dilemma is that the nature of american political conversation is that it seems to leave an ever-decreasing space for caveats & cautions. And we in the academy are in a structurally crucial place. Everyone else is paid to say something. Even the ABA task forces these days seem mostly about representing client positions, not "getting things right."

In other words, there's no one but us who can afford, literally, to say whatever we think. If our standards of conduct are so high that we can't allow ourselves to participate in conversations that matter, then the political conversation will end up being shills all the way down.

It's a difficult balancing, to be sure. But I think having a sharp-keyboarded Canadian around to call out folks who aren't holding themselves to the scholarly standard is a good start.

Posted by: BDG | May 24, 2012 10:54:22 AM

Brian, thanks for the comment. I think we've disagreed about this a little before. Let me clarify a little in a way designed to narrow the scope of our differences without trying to erase them.

I could or should have made a further distinction, although some of it was intended by the phrase "posts and articles . . that came *after* both the oral argument and the vote in the ACA litigation?" I agree that there was a good deal of commentary that came *immediately* during and after the oral argument that addressed a number of issues raised or neglected by the oral argument itself, and that was mostly substantive in nature. Whether it was aimed at the Court or not, it concerned interesting substantive issues. A host of motivations could be imagined for such posts, but certainly "lunch-table conversation" could be one of them. I posted on Hosanna-Tabor after the oral argument, and read posts on the subject by my friends, partly because I was interested in how the vote might go but just as much because I am interested in the issues raised by the case and it was natural to discuss them. In short, I don't think all commentary is the same, I do agree that "lunch-table conversation" was understandable and legitimate, and hopefully I've narrowed the scope of our differences.

Where our differences may remain, obviously, is in the "saying things to influence political conversation" area, although even here I doubt our disagreement is total. For me, it depends on how one why one says something and what one is saying; part of the dividing line within this is a question of accuracy, but I'm not sure it's all of it, or perhaps that "accuracy" is precisely what I'm getting at in thinking about this. I can certainly imagine valid and scholarly "informed criticism of the work of public officials."

But it also seems to me, by way of background, that certain aspects of these conversations are, for those who see enough constitutional arguments over time, just variations on a theme, picking up threads and elements that appear every time we debate constitutional cases and issues. Our experience suggests to us that some of these themes are not necessarily either true or false; they're just part of the endlessly contested ground of how we characterize these cases and which theme we treat as dominant. Knowing that, it seems to me that our role as commentators should be more descriptive than normative; it should be to note the ways in which cases get characterized as majoritarian or counter-majoritarian, enhancing or threatening the Court's "legitimacy," and so on, rather than (except in rare instances) to attempt to convince the public in advance that something is absolutely and utterly one or the other. Put differently, knowing that we're in the realm of contested and contestable themes, our job should generally be primarily to describe and analyze these themes, not to attempt to "inscribe" one theme or the other into public and political consciousness. We should generally not be trying to convince people that, as a matter of certainty, the cat in Schrodinger's box is alive, or dead. We usually know better.

We can certainly "inform" political conversation, and should. When it comes to "shaping" political conversation, we should be more cautious. And when the *primary* goal is to "shape" the political conversation, sometimes by asserting strongly that some theme or meme is "true" despite our knowledge that competing themes are inevitable in this discourse, then again I get more uncomfortable. I don't see the "whole project" as illegitimate. But there are aspects of such an effort that I think are less justifiable for academics. It has less to do with describing the case, or its potential political/legitimacy/etc. effects, and more to do with trying to prescribe some particular political position and inscribe it into public consciousness in order to shape the political narrative that inevitably will emerge, particularly when one knows that other meanings and positions are within the realm of reasonable contestation.

I appreciate your pressing me on this. I hope it clarifies somewhat the scope and limits of our agreement and disagreement. I still think my description is imperfect, although obviously I think there's something to it, and with luck between this comment and the post I've made my position *somewhat* clearer. At least insofar as I do think that "lunch-table conversation" posts of various kinds are perfectly legitimate, I'm not trying to criticize all the commentators alike. But I do think some of the posts that came well after the argument had more to do with trying to inscribe particular political and social themes into the public debate in a way that, for me at least, made me uncomfortable. Best wishes.

Posted by: Paul Horwitz | May 24, 2012 8:08:16 AM

Since I wrote one of the Balkinization posts, although in my mind not one of the ones that you think are merely political positioning, I'll say a little about my motives.

My post came about because Jack had written his own post on the meaning of the taxing power. I e-mailed him to note that I thought that as a predictive matter, the taxing power route might be tempting for the court because it would allow them to say what they evidently want to say about commerce and still uphold the statute. He suggested I write up my e-mail as a post; I did.

This was the electronic equivalent of lunch-table conversation. Punditry pro causa punditry. We're professors; we think about stuff; we tell others what we're thinking. Sometimes this process is useful, sometimes it's pointless. My view, and I think yours too, is that it isn't possible to separate the two until long after the words are said or written.

Having said that, I would also happily defend the position that academics are entitled to, and even sometimes should, say things to influence political conversation. There are some in our profession who will take advantage of the rational ignorance of the public to describe arguments as legitimate that are not. (Others may even sincerely believe that judges will inevitably reject long-standing law in favor of their own fringe view; I guess because Hercules/the fringe academic believes his/her view so strongly that s/he cannot see how anyone could persist in disagreement. Probably we should all be open to the possibility we're one of those people.)

Anyway, my point is that I see our profession as having an obligation to the public to offer informed criticism of the work of public officials. By its nature this criticism is aimed at informing and shaping political conversation. Some of it may be defended as "better" -- describing our sincere intellectual position is more true to the scholarly mission (as I see it) than taking positions we don't believe in order to increase the political power of those we otherwise sympathize with. But I don't see the whole project as illegitimate.

Maybe it was just your effort to be diplomatically elliptical, but your post comes off as criticizing all of the commentators alike. As I said, I see distinctions (although of course the sincerity of someone's arguments is hard for those of us outside their head to judge). Don't you?

Posted by: BDG | May 23, 2012 4:06:55 PM

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