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Friday, July 07, 2023

A Correction, and a Slightly Different Take, on Roberts's Quote

I have one correction to make about the quote Steve focuses on below, and a slightly different take, spurred less by his post than by a similar conversation I saw earlier this week. My take on Roberts's (full) quote is still ultimately critical, but starts from an effort to offer a more charitable interpretation and see where it leads. 

The correction is simple and, I think, a fair one. Steve writes that Roberts "is displeased with some language in Justice Kagan's strong dissent in Biden v. Nebraska," citing as evidence the quote he excerpts in his post. Maybe he is! But the longer version of Roberts's passage is at some pains to say otherwise: "It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary....Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country." 

I think a fair reading of the entire paragraph makes clear that: 1) Roberts does think some recent opinions have gone too far; 2) he expressly disclaims the view that Kagan's dissent does so; 3) he believes there is a difference between heartfelt disagreement and disparagement; and 4) he wants to make clear to "the public" that there is such a difference, in order to avoid "misperception." If there is a beef, it is expressly, at least officially speaking, not between "Kagan and the Chief," but between "the Chief and 'some recent opinions' other than this particular dissent by Justice Kagan." (For the same reason, I think that whatever meritorious points it may make along the way, albeit sometimes by way of diversion, this recent piece by Richard Hasen, which omits the "reasonable minds" language and obscures the language about the difference between disagreement and disparagement, is also in error.) 

My own take on Roberts's statement, as I said, is both critical and more charitable; I come neither to praise nor to bury him. My reading proceeds on the belief that when one can manage it, an effort at charitable interpretation can yield more interesting observations--including more interesting critical observations--than one that either makes casual assumptions about the writer's motives or plucks at low-hanging fruit. With due respect to Steve, I think accusations of hypocrisy are almost always the low-hanging fruit in what passes for public debate. Hypocrisy is a virtually universal human vice and, what is worse, an uninteresting one. (On the other hand, integrity is a very interesting and perhaps rare human virtue. Discussions of failures of integrity are similar to accusations of hypocrisy, but there are differences between the two, and the former subject is in my view a more interesting and valuable avenue to explore.)

What might the best version of Roberts's passage say? Not the best reading, as I make clear. Rather, if we were to try to develop the thought, what might it look like? I think it would make two or three kinds of distinctions. The first is between dissents that argue, however strongly, that the majority is dead wrong, and dissents that argue that the majority is, in effect, not even wrong, because it is not engaged in "law" at all, but simply operating lawlessly, by raw power. The second is between dissents that argue that some decision by the majority, however sincerely it was arrived at and in however lawyerly a fashion, in fact falls outside the Article III power of the federal courts, properly understood, and dissents that argue that the majority has deliberately ignored or abdicated its judicial role--that the judges themselves have deliberately cast off any sense of judicial duty in order to assert their power. The third distinction, which is perhaps just a general one that includes the first two within it, is between dissents that criticize a decision as wrong and those that criticize a decision, or the institution itself, as illegitimate.

Of course these distinctions, and the distinctions between the different types of distinction, are not firm in practice; they may not be solid conceptually (I reserve judgment on that question); and they certainly will give rise to differences of view, which no doubt will be heavily influenced by one's politics and jurisprudence, about whether a particular statement falls on one side of the line or the other. But I think they're meaningful despite those concerns.

On this view, it is absolutely fine to argue that a majority is dead wrong. A reading of the full passage makes clear that Roberts agrees. It is also, at least in my charitable reading (but see below), fine to argue that a majority is wrong in its view of the role and limits of the federal courts--that its view is either too broad or too narrow in its understanding of the judicial power. In both cases, there is a distinction between these criticisms and an argument or assertion that one's opponents are wrong not because their jurisprudence or its application is wrong in general or mistaken in application, but because they are simply indifferent to any such questions; that they have abandoned even a mistaken effort to act judicially, and are instead imposing pure will without any trace of judgment, to paraphrase Hamilton.

That is the illegitimacy criticism. This is the focus of Roberts's concern. As I noted, there will surely be differences of opinion about when a court has acted wrongly and when it has acted illegitimately. Among those with some (perhaps too much) immersion in the law and its ways of thinking, those differences will be more thoughtful, but still influenced by one's politics, one's jurisprudence, and, harder to pinpoint but I dare say just as important, one's temperament. Among those with little knowledge of or interest in the intricacies or norms of legal decision-making, the move from thinking a decision wrong to thinking that it, and the institution that issued it, is illegitimate will be reached more quickly, ignorantly, and perhaps carelessly. 

It does not seem unreasonable to me to take such distinctions seriously, even with their imperfections. Indeed, most of the critics I have seen of Roberts's sentence (I won't say "paragraph," because those criticisms rarely quote the whole thing) take those distinctions seriously themselves. They point to one statement or another by some justice--perhaps Roberts, perhaps Scalia, perhaps someone else--that they think falls on the wrong side of the line, and thus demonstrates hypocrisy or irony or some other failing on Roberts's part. (In our fallen, bumper-sticker lingo, I believe this is called "whataboutism" and is generally frowned upon. I find criticisms of "whataboutism," "both-sides-ism," and similar idiot phrases uninteresting. What I do find deficient in such accusations is that they treat what ought to be the beginning of a line of argument, one that needs to be developed and teased out and may land in unexpected places, as the end of the argument.) If those critics were actual critical types, they might end up somewhere more interesting. For instance, they might conclude that since law is the strategic exercise of rhetoric for purposes of power, it's all in the game. Accusations of illegitimacy from the judicial left or right, and counter-criticisms of accusations of illegitimacy from the judicial left or right, are all simply standard current moves to be deployed. not necessarily wisely but certainly not, so to speak, illegitimately. But they're not crits; they're legal liberals. So that move, or at least full candor on this point, is not available to them. They are obliged to have faith in the distinction, and are limited to trading accusations about whose shoe is on which foot. (In most cases, I presume, this self-limitation is sincere, even if it suggests a possible lack of self-awareness. Surely there are others for whom the accusation is indeed in bad faith; they do think it's all in the game, but are willing to accuse one side of exercising raw power even if they think that side was exercising judgment and not just will, or even if they think there is never more going on than pure will. For such critics, the failure is not one of coherence, but of honesty and integrity. If they are scholars, this would also be a professionally disqualifying failure.) 

I'm inclined to think, but without strong conviction on this point absent a serious second look, that some recent dissents have fallen on the wrong side of the line. I'm also inclined to think that some past dissents have fallen on the wrong side of that line. Again, there will be differences about when this is the case. In my view, this sometimes comes down to a matter of tone. It's easy for an argument that one's judicial colleagues have acted outside the proper scope of the judicial duty to slide into an accusation that they have acted arbitrarily or outrageously or for reasons of pure politics; it's a matter of a hot temper, a few too many angry words, and too little willingness to excise a pithy but unnecessary word or phrase. It would not be wrong, on this view, for Justice Scalia to argue in dissent that a majority was fundamentally mistaken in its view of the role of the courts. But it would also be easy for him to take a step too far, to be too enamored of his own writing, and so to turn the criticism into a personal or institutional attack. Sometimes he most definitely did so; but not every dissent that argues that the majority has misunderstood the role and duty of the courts, either by going too far or by shirking its responsibility, would qualify. 

I also think it's reasonable to worry about language in opinions being used strategically by "the public" to further some point of its own about the legitimacy of the Court, a point that the opinion writer him- or herself might disagree with. The world is full of fools, knaves, and social media accounts, with a substantial overlap among them. I doubt that a caution like the one Roberts offers here would do the slightest good; and because it doesn't, it may do some harm, by seeming (or being) fatuous or futile or defensive. But the concern it expresses is not unreasonable as such.

I find Roberts's passage weakest in three or four things. The first is debatable. He might have illustrated his point with specific examples. One can understand why he didn't, of course. Second, and here I think his passage is at its weakest and my reconstruction is at its most charitable and creative, he elides arguments that a decision is "going beyond the proper role of the judiciary" with arguments that engage in "disparagement" of the majority and the institution rather than "disagreement." The proper role of the judiciary is a legitimate subject for disagreement between judges, it can be raised without broader personal or institutional disparagement, and--as critics of Roberts's passage emphasize--it has been raised, by judges including Roberts. I think Roberts wants to say (or ought to want to say) that it should be possible to air even fundamental disagreements about the judicial role without suggesting that the ostensibly erring side simply doesn't give a damn about law or judging as such, and that a failure to make the difference clear is damaging to the institution qua institution. Maybe that's not what he wanted to say. But if it was, he could have said it more clearly. Third, I'm not sure his passage is aimed at the right target. Most of the worst stuff along these lines is not coming from dissenting judges, but from the "public" he is purporting to address.

Finally, I found his use of the phrase "the public" vacuous. I will stipulate that there is some "public" that consists of individuals who are interested enough in the Court to pay some attention, not so much to its opinions, but to commentators using and abusing language from those opinions. I'm not at all sure that this "public," which again largely has its mayfly existence on social media, is "the public" or an especially representative public. There is a much larger public that doesn't care at all about such matters, or that thinks ill of the Court as an institution in part because of current politics, in part because it has come to distrust institutions generally, and, in a broader sense, because many people seem to no longer comprehend or care about the idea of institutions as such. And then there is the "public" that consists of paid professionals, people who depend for their living or for the reputational goods they seek on either digging up real or imagined evidence that the Court is illegitimate and then broadcasting it in the most florid terms, or digging up any possible argument that the Court is not illegitimate and broadcasting it in equally florid language. Whether we should pay the slightest attention to such paid employees of the political ecosystem and its donor class, and in what sense they can be said to be "the public" at all, are separate questions. But on the whole, I doubt that "the public," as Roberts uses it here, has much descriptive value.   

Posted by Paul Horwitz on July 7, 2023 at 03:30 PM in Paul Horwitz | Permalink

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