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Tuesday, March 03, 2015

Some Questions About Randy Barnett's Latest Ref-Working Post

With another big ACA case before the Court, Randy Barnett has a new post returning to the subject of a number of posts, by him and others at the VC, during the NFIB litigation. He charges  that "the left" is newly engaged upon a "political lobbying campaign" aimed specifically at Chief Justice Roberts, consisting of a mix of flattery and threats, to secure what it thinks is the right result in King v. Burwell. I have some problems with, and questions about, Randy's post, but I want to offer a couple of caveats up front.

In broad terms, there are aspects of his post that I either agree with or find plausible. I agree that the mandate case was a trendsetter in recent Supreme Court advocacy. Without more knowledge--the behavior of the press and professoriate of the period between the 1930s and the 1960s, not to mention the Justices, does not seem entirely innocent of at least similar activity--I wouldn't call it unprecedented. But it does seem to have been influential in our own time. The mixture of academic work, social and traditional media commentary, amicus briefing, and contact with journalists, generally aimed at advocating for particular results in the case, was striking. The striking element was not the advocacy as such. It was the mixture of different platforms for making the same argument, and the sense that although some of those actors are assumed by many to serve different goals and follow different professional standards depending on the role and the platform (although those standards are much-contested), what we actually got was people like law professors writing in both scholarly and non-scholarly platforms, for uniformly non-academic reasons and in a way that disregarded those goals and standards. It was the sense, in short, that some professional actors, rather than acting as academics (or journalists), were engaged in a multi-platform political campaign. 

It's not clear that this approach worked. But the possibility that it did has made it more likely that the behavior will recur. That's especially true when we combine its potential effectiveness with a number of other factors: the (perceived) high stakes involved; the number of people with at least temporarily strong views on the issues and cases; the lack of clear standards of ethical conduct for both legal academics and a widening swath of news and opinion media; the potential personal gains involved (in reputation, influence, professional advancement, and ego-boosting effects of feeling like a player); and the belief that the other side is engaging in this conduct, leading to fears of being outgunned. I think some of this same cross-platform advocacy happened in Hobby Lobby too, and is happening or will happen again in King v. Burwell.

I personally find this sort of behavior--the mixture of fierce advocacy across different platforms, including academic and journalistic work that ought to be motivated by different goals and to follow distinct professional and ethical standards--distasteful, particularly where legal academics are involved. My reasons vary, but not least among them is that I have the luxury of prizing academic virtues and standards more than I do the results of particular cases. (Of course, all legal academics enjoy the same luxury.) I'm not sure whether Randy thinks any of the same conduct occurred on the right; I also don't know whether he thinks anything other than "working the ref" is ethically problematic. I know that my answer to both questions would be "yes": it did happen on both sides, and that it (arguably, assertedly) involved "working the ref" was not its only ethical shortcoming.  

That said, Randy's post raises a number of questions. (After the jump. I apologize for the length, but I didn't have enough time to write a shorter post.)  

1) What does he mean by "campaign," or "its?" (Or, for that matter, "the left?") Is he arguing specifically that there was a deliberate, coordinated strategy of conduct by "the left?" If so, among how many people? Is it likely that such conduct would occur only as a result of a continued, coordinated strategy? Is it even necessary? I would think not. As long as a few key actors behave in a particular way or make particular arguments, others will likely follow along. I don't know how many people crowd into Grover Norquist's Wednesday coordinated-campaign-planning meetings; nor do I know how many people receive their party's coordinated talking points of the day. But most people adopt the narrative of the day pretty quickly and more or less reflexively. This is certainly true, although not uniquely true, for both legal academics and journalists. We are no less susceptible to suggestion and no more capable of independent thought than anyone else. 

2) If Randy does indeed mean to suggest something like a coordinated, deliberate strategy of attempting to influence the Chief Justice, what is his evidence? As far as I can tell, it involves two data points and one assumption. The factual evidence is this: 1) "[W]e have reason to believe that the Chief Justice Roberts did change his vote after the progressive onslaught" in NFIB, suggesting that "the left" has absorbed this lesson and is acting accordingly once again. But the "reason to believe" that he offers is weak. The apparent leak he relies on alleges that Roberts switched his vote in that case. But the leakers present no evidence that Roberts changed his mind because of media pressure to do so. The leakers appear to suggest that he did. But they offer no evidence to support this claim. And, of course, there are good reasons to doubt their surmise that he was voting under the influence. For one thing, leakers generally have an agenda. For another, their surmises could just be wrong. Assuming arguendo that the sources are smart people, smart people are still capable of being mistaken, especially on matters with a high emotional and political valence. Indeed, I have met plenty of smart lawyers who are both overconfident about their own judgment and too ignorant of the psychological drivers of other people's actions (not to mention their own); these people may thus be more susceptible than others to erroneous judgments about another person's motivations. 2) The second data point is simply the actions themselves, in both the NFIB and this case.

That's where the assumption enters in. It's difficult to tell, and I acknowledge room for disagreement. But as far as I can tell, Randy seems to be making an implicit logical argument: The conduct he describes must be aimed at directly influencing Chief Justice Roberts in an improper manner. Why else would people behave this way and write what they have written? I see lawyers and legal academics drawing conclusions of this sort all the time online and in print. It seems to me that this kind of argument is pretty common for lawyers (and online commentators, many of whom, on the sites I frequent, allege that they are lawyers). It's a problematic kind of argument: it displays an unjustified belief that one can reason one's way to a conclusion, especially about other people's motives, based on some kind of logical reasoning or process of elimination. I may be wrong about whether Randy is making this sort of logical argument, and this sentence is not aimed at him especially. But I do think it's common, and betrays, among other things, an overconfidence about the power of logical reasoning, especially from limited factual premises, and an inadequate appreciation for the power of human psychology and the variety and complexity of motives for beliefs and actions.

In any event, the problem with such a conclusion in this case is that there are many other reasons why people might write these kinds of things, other than a simple primary intention to directly influence the Chief Justice or any other member of the Court. People write heatedly and politically because they are heated and political. They write about other people's motives because they care about them (too much, I would say) and are confident they can identify them. They accuse judges and others of acting in bad faith and urge them to act in good faith--by agreeing with them--because they believe, sometimes to a ridiculous extent, that their own views are so obviously right and their opponents' views so obviously wrong that disagreement must signal bad faith. While they are capable of acknowledging the complexity that might go into their own views and actions or those of their friends and forgiving their friends or themselves for acting inconsistently or with mixed motives, their empathy and imagination runs out where their political adversaries are concerned. They engage in moral sermonizing about the Chief, the Court, and everything else because they are moralists in an extraordinarily moralistic society, and one in which, to paraphrase Tocqueville, every morally charged political issue eventually becomes a morally charged legal issue and is subjected to the endless American pastime of moralizing; and also because the sermon is a classic American literary genre and one that most of us--even, alas, legal academics, who have no special moral qualifications and ought to realize it by now--engage in fairly frequently. They write passionately about the Court as an institution, its reputation and fitness and legacy and so on, because many politically engaged lawyers and journalists care deeply and sincerely about these things, albeit temporarily and inconsistently. 

Not least, the propensity of many journalists, lawyers, and legal academics to write in this fashion--telling the Court what it should do, and the rest of us what we should think of the Court if it decides a a hot-button case in one direction or the other--has to do with the fact that it's their job, sometimes their vocation, and this is the activity expected of them. Lawyers and legal academics write about legal and/or political issues because they care about those issues and get paid to care about them, because many sectors of the legal academy expect and/or reward (in various ways, financial compensation being only one) this sort of writing rather than clinical and dispassionate work, and because caring and writing about legal issues is both a professional imperative of sorts and a conditioned reflex. Commentators write heatedly and in a partisan fashion about politics and the Court because they want to, and/or convince themselves they want to; because writing a broadside is easier, temporarily more satisfying, and more likely to draw attention than writing a dry technical piece; because online writing is partisan, competitive, and driven by page views; and so on. To Johnson's dictum that no man but a blockhead ever wrote except for money, we could add other compensations: recognition, ego, invitations to speak in Las Vegas or Hawaii or Peoria, the satisfaction of partisan urges, the desire to please one's friends or rile one's enemies.

In sum, there are plenty of reasons to write partisan screeds for or against the Court or results in particular cases or the reputation of particular judges. Most of them are consistent with coordinated partisan conspiracies. But none of them depend on the existence of such concerted action. At least in this polarized partisan environment, people would write exactly the same words whether such a conspiracy existed or not. The supposition that the writing we saw in NFIB or Hobby Lobby or that we see today would only exist if there were the kind of "campaign" that Randy describes is far too thin; the evidence he offers is weak. One might respond that even if this is so, that does not explain why there has been such a combination between what is said in media outlets, what is said in academic work, and what is said in briefing. Again, I find these overlaps distasteful and worrisome. But the response is not true. Many legal academics are political and cause-driven, either all the time or in particular cases; many writers and politically engaged people of all stripes no longer draw sharp distinctions between different roles, different media platforms, and different professional or ethical standards; many communities and groups, online and off, encourage people with these views to mix and mingle.

I would add that in my view, even apart from professional contestation over how politically engaged legal academics should be, conventional standards of professional responsibility for legal academic work, intramural or extramural, are weak, and the rewards for massaging or ignoring those standards can outweigh the risks. Plus, everyone is convinced that the other side is doing it and that they had better respond in kind. I wish it were otherwise. But in this world, there are plenty of reasons for a law professor to mix one's academic work, one's writing for the general public, and one's work on or signing of amicus briefs. No "campaign" is necessary. I don't know whether one exists just the same. If it does, I haven't been invited to sign on to it, although given my small talents and large sentences that's no great surprise. But I don't think Randy's evidence or arguments on this point are especially convincing.

3) It would also help if Randy could describe which aspects of such a campaign are wrong, unethical, or outrageous. Perhaps it is only the purportedly concerted nature of the action that concerns him, or the attempt to "threaten" the Chief Justice. As I said, I don't think the evidence for a concerted campaign is very strong. And the second possibility raises a host of questions. Is it really always wrong to question the Chief's reputation or ponder his legacy? Why? If not, when is it wrong? If, on the other hand, it's not just one or both of these things that concern him, what does? What would he rule out of bounds?

4) Does Randy think all the examples he cites are equally strong? Some of them seem rather weak. For example, he writes, "To assist the Chief Justice in burnishing his legacy, The Hill helpfully provides a poll" of public opinion on the King case. Public opinion polls are pretty standard stuff, easy to write and engaged in more or less reflexively. It's a big stretch to see their very existence as evidence of an intention on the part of the news organ commissioning, conducting, or reporting on them to sway the Chief Justice. And Ian Millhiser? For one thing, does anyone actually pay attention to Ian Millhiser? Even if they do, is there much evidence that Millhiser writing a partisan piece about the Court is part of a campaign (as Randy notes, Millhiser's piece is "characteristically fervid," which is to say that he does this kind of thing all the time, "campaign" or no), or that he envisions Chief Justice Roberts as one of his readers? Millhiser has a book coming out; isn't he pretty clearly just involved in selling it?      

5) My final point concerns what Randy himself is engaged in doing. I'm not sure it contradicts any of Randy's assertions. Moreover, I find myself generally uninterested in charges of hypocrisy, which are common in American legal and political debate but often misused. Even if hypocrisy or inconsistency does not disprove a persons's arguments or factual assertions, however, it does tend to undermine the effectiveness of that person's arguments and rhetoric--especially the kind of moralistic rhetoric that is so common in American legal and political debate--and to raise questions of its own.

I consider myself to have some expertise on this question, and it stems primarily from being a parent. (At least where passive-aggressive conduct is concerned, being Canadian also supplies some expertise.) Like most children, my two kids routinely compete for seemingly scarce resources, including their place in their parents' affections, and regularly rat each other out for misbehavior. (In fairness, they're only six and nine; I hope to teach them one day to observe a form of sibling omertà.) Quite frequently, their arguments along these lines contain a certain measure of passive aggression and hypocrisy: my daughter revealing a confidence from her brother to tell us that he has divulged a secret, for instance, or my son running downstairs to report that his sister was running in the house. All of this, and other forms of argument as well, usually is packaged in a kind of passive, indirect way. The implication is that the child in front of me, even as he or she breaks one rule or another, is really just reporting what the other child did and thus should not be treated as an act of rule-breaking.

Similarly, the obvious question arises with respect to Randy's post: What is going on here? Randy argues that "the left" is attempting to influence the Chief by a mixture of flattery and threats. To the extent that the Chief sees Randy's post, isn't that post likely to operate in exactly the same way--by stiffening his spine, or moving him to resist this "campaign?" He writes that "the left" "once again risk tainting a ruling in their favor as being based on the very political considerations they themselves urge upon the Chief Justice." Doesn't such a statement risk being read as suggesting that a ruling agreeing with "the left's" preferred interpretation in King would be tainted, or seen as tainted by the public--and that, conversely, an opinion agreeing with Barnett's preferred interpretation would be seen as correct and independent, if not downright courageous? He writes that "the left's" current "campaign" on King is being conducted "with varying degrees of subtlety." Is it not apparent that his own post can be read in precisely the same way--as an indirect, passive-aggressive way of flattering and threatening the Chief by reporting on the attempts of "the left" to flatter or threaten the Chief? The answer is "of course," of course. 

None of that, again, means that Barnett is wrong in his charges against "the left," although, as I have said, I think his evidence is questionable. It does not mean that Barnett is intentionally engaging in a campaign of his own; I disclaim any knowledge of his motives. Nor does it mean that the kinds of writing he is talking about, and more particularly the kind of mixed multi-platform advocacy that I think is becoming increasingly popular, is a good thing. I think it's a bad thing, regardless of whether it is concerted or not or aimed at the Chief Justice or not. It worries and disheartens me especially when engaged in by legal academics. I support institutional pluralism. As such, I have no great problem in the abstract with the notion that some public law-oriented legal academics might have a different vision of the legal academic project, one that sees it as being aimed at achieving immediate social, political, and legal change in the world and views academic writing, amicus briefing, and public commentary all as potential tools toward that end. But I think criticism is also a natural aspect of institutional pluralism--and I have a critical view of this conception of legal academic work and professional standards.

I find it hard to imagine that Barnett is unaware that posts like this could have the same effect. I am not suggesting with confidence, but also cannot rule out the possibility, that he knows this, or even that he hopes to influence the Chief Justice. And I am not inclined to view this kind of activity any more favorably if it is engaged in "merely" as a corrective or balancing out of work by "the left."   




Posted by Paul Horwitz on March 3, 2015 at 11:24 AM in Paul Horwitz | Permalink


You should never pass a law unless you know what's in it.
Congress has the authority to tax, it does not have the authority to mandate which HealthCare Plan we must choose.

Posted by: N.D. | Mar 5, 2015 9:28:39 AM

I agree 100 percent too, but I think you're being a little too kind. Barnett quotes a series of articles making the anodyne observation that should the Court rule for the challengers 5-4, many people will be more inclined to perceive the Court as partisan. Now, one thing's for sure; these commentators are right. Rightly or wrongly, a lot of people would perceive a 5-4 decision as partisan. I have to think Roberts knows that, and that Brianne Gorod, Robert Barnes, etc., are smart enough to know he knows it. So it's very hard to see these pieces as ref-working, much less instances of ref-working that could possibly have any effect. The observation they're making is so trivial and obvious, it's like noting that if the Court rules for the challengers, people who currently receive tax credits to buy insurance in states with federal exchanges won't be very happy.

Posted by: Asher | Mar 4, 2015 12:41:09 AM

Heroic of you just to brave its length! Thank you for the kind words.

Posted by: Paul Horwitz | Mar 3, 2015 1:13:34 PM

I agree 100% with this -- the whole thing!

Posted by: Bruce Boyden | Mar 3, 2015 12:59:15 PM

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