The Tribute Vice Pays to Virtue: A Comment on Roberts’ Purported Marburian Move

Many have argued that the Chief Justice executed a brilliant Marburian move – which enabled conservatives to “lose the battle but win the war.”  Like Steve Vladeck, I think the analogy is superficial.  But I’ll note an irony that I haven’t seen expressed elsewhere. The argument goes that the Chief Justice deliberately and brilliantly set out to neuter democrats by “giving them what they wanted” today while simultaneously setting up a series of precedents a future decision(s) invigorating the lost constitution.  Like Marshall before him, the Chief Justice grasped that the best time to make good precedent for you is when you are losing.

But consider what this argument actually implies about how judges work. Before yesterday, many Americans, and most law professors, would have agreed with Mike Dorf’s lament:

“When I started as a constitutional lawyer, I was about 70% legal realist.  I thought that in the ideologically identifiable cases in the Supreme Court, law accounted for roughly 30% of the outcomes one saw.  After Bush v. Gore, I was at 99-1.  That last one percent is on the line in the ACA case.”

That is: precedent was not thought to constrain judicial rulings at the Supreme Court level.  Indeed, folks who do think that law constrains must often couch their arguments instrumentally – “precedent matters because following precedent increases institutional and thus personal power in the long-term.”  But note: for partisans to now argue that the Chief Justice has strategically scattered a bread crumb trail requires them to also believe that precedent will meaningfully affect the outcome of future Supreme Court cases.  Or to put it another way, the Marbury-ACA thesis is largely based on a theory of Supreme Court decision-making that, until yesterday, few would confess to holding.  It’s as if the Chief Justice has magically clapped his hands, and we all now believe in the tooth fairy.

What’s especially ironic is that partisans make this argument while also asserting that the Chief Justice’s motives were largely political!  So, in essence, they are claiming that the Chief Justice believes he can constrain other jurists (those who care about precedent – surely, “our side”) while himself being unconstrained by force of law.  He’s the ultimate cynic.  Not a latter-day Marshall, but a black-robed Machiavelli.

This, I think, is a nice example of what psychologists call projection.



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8 Responses

  1. Chris says:

    Wow. I agree completely.

  2. andy says:

    June twenty nine, two thousand twelve: The first time that “Marburian” is used in a legal context. I will remember this day well.

  3. Dave says:

    Great observation. Similar logic failures often extends into other areas of policy. For example, take two views that it would be somewhat ordinary for the same person to hold: 1) Politicians are corrupt and do nothing but take public money and use it to get themselves re-elected (or variants on the theme, such as the wastefulness of military spending, or that government is run solely in the interests of corporations), and 2) we should increase taxes. The first view somewhat cancels out the second (not entirely, obviously, but enough to render serious questions as to the wisdom of the second point). Or, if you prefer a more conservative view, take 1) individual liberty is paramount to the greater good (taxation, social welfare), and 2) individual liberty must be sacrificed for the greater good (law and order, war on terror).

  4. Matt Bodie says:

    I think you’re overreading the argument. It’s not that Roberts agreed with Kennedy & co. but moved to uphold the law because he thought it would be more legally successful down the road. The argument is instead that Roberts was unwilling to overturn the ACA for institutional/political reasons, but he still worked in some nice language constraining the Commerce Clause and the Spending Clause powers into the opinion. There is really no reason for him to reach the Commerce Clause issue, given that he found the statute to be constitutional on other grounds. The comparison to Marbury is simply the two-step of (1) avoiding a politically “hot” judgment while (2) still establishing the underlying legal principles for future use. It’s certainly not a direct analogy, but what’s the reason for the Commerce Clause stuff, then?

  5. dave hoffman says:

    Matt. That’s surely a more modest version of the argument that’s all over the web, but it isn’t the one that’s most popular on various blogs. In the version of the claim I’ve heard, the Chief deliberately set out to gut the progressive project on the sly. And, suckers that liberals are, they’ve swallowed the hook. Next year, and in the next generation, he’ll reel in their hopes and dreams, one by one.

    In any event, my point was that the “nice language constraining the Commerce clause” only works if future Justices are, in fact, cabined in by precedent. Many – many – people have argued that precedent doesn’t constrain conservative/liberal Justices. Indeed, that’s EXACTLY what progressive critics charge the joint dissent with (and what conservatives charge liberals with – in ignoring Citzens United).

    Thus, according to the latter-day-Marburians, the Chief Justice simultaneously is entirely cynical and weirdly naive: he employs precedent as a weapon, but that weapon is only effective as long as others act out a vision of the judicial role that (partisans allege) the Chief Justice has abdicated. He expects the best in others, but recognizes himself to be a hollow shell in a robe. What nonsense.

    As for me? I’m with Kerr. He originally wrote the commerce clause stuff hoping to get another vote. Or he wrote it because he thinks the tax argument was weak, and he wanted to show that he was driven to it. Or maybe even because he wanted to lay a marker down. Or actually I have no idea. I don’t much care. But – and this is crucial – we’re all better off if we don’t so easily succumb to cynicism, and instead consider the possibility that the Chief – like most Judges – sees himself as constrained by law, and doesn’t imagine himself to be a creature of politics.

  6. Andrew Selbst says:

    “In any event, my point was that the “nice language constraining the Commerce clause” only works if future Justices are, in fact, cabined in by precedent.”

    I’m not sure I buy this. Precedent also provides cover for a justice who is politically not willing to act yet. I think that is the value of the commerce clause stuff to the Chief. He now knows has four votes with him, but the slower the move, the more justifiable in the public eye.

  7. Dave —

    Given that it’s my “lose the battle, win the war” formulation you’ve linked to above, I thought I should note that I did not ascribe political motivations to Chief Justice Roberts. Rather, as I tried to indicate, I think his opinion actually fits with the approach to judging we’ve seen from him thus far. While others have been quick to case his vote in political terms, I find other explanations (such as those suggested by Mark Tushnet and Rick Garnett) equally plausible. Chief Justice Roberts has not shown himself eager to overturn the constitutional judgment of the other branches, and there are plenty of “non-political” reasons a justice could adhere to this view, particularly when confronted with a statute as consequential as the PPACA.


  8. Dave Hoffman says:

    Thanks for the clarification. It can be hard, of course, to see clearly through the VC haze as to individual bloggers’ views! I also appreciate the quotes around “non-political,” which I assume nods toward the possibility that it’s not as easy as some of your co-bloggers have argued to term particular arguments “legal” or not.