Friday, June 26, 2015

Reading Judicial Opinions

Judicial opinions, while densely written, can be fascinating to read—even inspiring, because of the exemplars they offer of rigorous textual analysis, fair and disciplined debate, and rational reasoning applied to human affairs. Judges' opinons can also impress with their rhetoric and style. As a non-expert, I usually have to skip over some of the jargon and procedural matters, but after reading enough of these things, you even begin to understand how some of that stuff works.

Here are some notable examples of the genre.

1) No fireworks, but solid: the May 7, 2015 decision that struck down the bulk data collection component of the NSA's domestic spying program. Most of the public debate about the program revolves around constitutional rights, like freedom from unreasonable searches. However, the court case was decided purely on the basis of statutory interpretation. Contrary to the government's claims, the judge agreed with the ACLU that the Patriot Act as written had never authorized the bulk data collection program in the first place. I thought the decision paid very careful attention to the text under dispute. I also admired the way the judge was able to represent the claims of the losing party and give them their due.

2) The challenger: the November 6, 2014 decision that found same-sex marriage bans constitutional, teeing up the June 26, 2015 Supreme Court decision that ultimately ruled otherwise. Judge Sutton's decision was a very sophisticated piece of writing. Knowing that his decision would immediately undergo Supreme Court review, the author threw everything at the wall so that he could attract as many of the justices' votes as possible. The Supreme Court ruled 5-4 against him, but it seems to me that he earned at least the Chief Justice's dissenting vote with his argument that this decision should lie with the people rather than with the courts. Sutton also made the best case one could possibly make for the rational basis of same-sex marriage bans. I thought the greatest weakness of Sutton's decision was that it paid only light attention to the actual injuries of the plaintiffs seeking the relief of his court. Any court case is foremost about the specific conflict occurring among the particular individuals named in the suit; by turning the decision back to "the people," Judge Sutton largely waved away the injuries of the specific people who were seeking redress in his courtroom.

3) The interpreter: Chief Justice John Roberts's majority opinion in the June 25, 2015 decision upholding tax credits in Federally created health care exchanges. This was another statutory interpretation case. The first key to the decision is Roberts's conclusion that the sentence under dispute is actually ambiguous. The second key is the conclusion that the court cannot defer to the Executive branch for resolving the ambiguity, because the ambiguity does not concern a mere detail or technicality but rather the main thrust of the legislation at hand. The decision is interesting because it rejects not only the stunted, literalist textualism of Scalia but also the "tea leaves" approach of divining legislative intent. The key word in the decision is "plan." Roberts bases his decision not on a mysterious divination of legislative intent, but on a simple apperception of the legislative plan, as expressed plainly through a reading of the text as a whole. (More on this angle here.) Finally, I thought this decision was remarkable for the deceptively breezy style of its writing—the work, it seems to me, of both a talented writer and a formidable intellect.

4) Roberts's dissent in the June 26 Supreme Court decision ruling that same-sex marriage bans are unconstitutional. Roberts adopts Sutton's position on the role of the judiciary and combines it with a vehement concern about the implications of Kennedy's new jurisprudence of "dignity." Roberts makes a strong case. He remedies the major weakness of Sutton's decision by stressing the harms to the plaintiffs, and I also thought he put the best possible face on "the argument from definition" (the view, more or less, that the plaintiffs are asking for something that is, if not impossible for them to have, nevertheless reasonable for them not to have, because marriage means a union of a man and a woman). Roberts notes that had the case been about the denial of tangible benefits to same-sex couples, he might have ruled in the plaintiffs' favor; instead, the plaintiffs sought a right that he cannot find in the Constitution. Roberts's real concern seems to be about the expansiveness of the concept of dignity as a constitutional right. Law professor Jeffrey Rosen also highlighted this issue after hearing the oral arguments in the case.

5) The majority decision itself. Stylistically, I have to agree with Scalia that the prose is often overwrought (but occasionally magnificent). The logic of the decision seems to be that if you look carefully at Supreme Court precedents about marriage, you can discover four things that make marriage a fundamental right under the Constitution. Then, you can observe that none of those things are special to opposite-sex unions. Therefore, it is reasonable to conclude that the fundamental right to marriage as accreted through Supreme Court jurisprudence actually includes, in fact substantively always has included, access by couples of the same sex. This decision was Kennedy's life work as a jurist. As Scalia famously predicted, this decision flows from his earlier decisions in Lawrence, Romer, and Windsor, which built the edifice of his concept of dignity in the Constitution.

One last comment on today's decision. I think that two factors made this result inevitable—if not today, then soon enough. One is that Scalia's concept of homosexual acts lost out to Kennedy's concept of homosexual persons. The state can attack actions in law, but the state can't attack persons. Second, although the defenders of same-sex marriage bans did their rhetorical best, once you take away religious justifications for these bans, you aren't left with enough reasoning firepower to win the day. Today's decision is going to be painful for many precisely because it underscores that we are a nation of secular laws, not religious doctrine. Roberts even perceived a subtle hostility to religion in Kennedy's decision, noting that Kennedy left room for religious people to "advocate" and "teach" their views, but said nothing about "exercising" them, which is the First Amendment's verb of choice. Presumably, Kennedy's reply to this would be just as strongly grounded in the Constitution: the exercise of religion is for citizens, not for the government.

The Supreme Court, August 2014

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