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Friday, July 06, 2012

Politics, principle, both, neither

Orin Kerr offers a great hypo--what if Roberts initially voted based purely on politics (support the Republican preference, payback Obama for opposing his nomination), but then changed his vote based on principle. Orin uses this to make the absolutely correct point that we cannot tell whether anyone voted (or changed their votes) based on principles, politics, or some combination of both by looking at nothing other than their votes.

This recent round of politics v. principle debate is reprising, with different terminology, the same mindless tropes about "judicial activism" or "legislating from the bench." Just as judicial activitism is a decision with which I disagree, if I agree with the decision, it must be based on principle and if I disagree with it, it must have been based on politics.

Posted by Howard Wasserman on July 6, 2012 at 12:03 PM in Constitutional thoughts, Howard Wasserman | Permalink


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I agree with the principle, not politics, take. See my comment on Huffington Post on 7/3:


Posted by: Lisa McElroy | Jul 8, 2012 1:49:11 PM

The structure of the majority v. the dissent makes Orin's argument implausible. In the majority, Roberts makes a strained attempt to incorporate his commerce clause essay as the holding, in order to provide a concession to the conservative side. That's a "political" move. In the majority he talks about the need to search for a "saving interpretation" and the canon of upholding statutues under any reasonable interpretation available that finds them constitutional.

The dissent, which he original wrote (or at least agreed with) is in "this is what I think the best legal interpretation is" mode. You can disagree with the dissent on the merits and still admit that Roberts was clearly trying to find a political savvy middle ground. That is what the whole Marbury pose / "long game" stuff is about on the part of those who approve of the opinion; Marbury was a "political" decision if there ever was one.

Posted by: Matt | Jul 7, 2012 12:05:40 AM

Agreed (just as no one has a coherent definition of "judicial activism" or "legislating from the bench" or, for that matter, "calling balls and strikes"). My theory from the start (which others have offered) is that Roberts believed the mandate violated the Commerce Clause, but could not conceive of invalidating the whole law (an unbelievably drastic action) but also could not figure out how to sever, so he went looking for a way to uphold the mandate. The real-world feasibility of creating judicial remedies is unquestionably an issue of judicial principle, even while also taking account of political realities.

Posted by: Howard Wasserman | Jul 6, 2012 4:28:51 PM

The difficulty with all debates about politics versus principle is that the participants do not typically have a coherent definition of "principle." The very dichotomy of politics and principles suggests something is amiss: Why can't a desire to avoid a political ruckus, after all, be a principle? Is that not what Bickel's "Prudential Virtues" are all about?

Posted by: Rick Hills | Jul 6, 2012 3:48:00 PM

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