The Cocktail Party Argument And Strategic Judicial Behavior

by Erik Voeten on July 3, 2012 · 8 comments

in Judicial,Law

There appears to be an emerging consensus that Chief Justice Roberts was motivated by concerns that fit comfortably within strategic models of judicial behavior (gated), which have long argued that judges sometimes need to restrain their own behavior in order to influence future judges, maintain public legitimacy, and more generally communicate with their multiple audiences.

Law professors are usually the first to critique claims of strategic judicial behavior; pointing out that there are perfectly good legal reasons for why judges do what they do. The difficult issue for non-lawyers is generally to assess the strength of this critique. However, in this case the lawyers do not seem to be trying very hard. The widespread presumption appears to be that  legitimacy concerns are indeed at the root of Roberts’ behavior, with the conflict being about whether this was a good thing or a bad thing.

So how can we be sure that Roberts’ (final) decision was indeed not sincerely motivated by twin beliefs about judicial restraint and that the penalty for not buying health insurance could be interpreted as a tax, even if this was not its “most natural” interpretation?

Essentially, the Roberts’ opinion makes what could be called the “cocktail party argument.” Among my intelligent non-lawyer friends the big puzzle always seemed to be why it would be constitutional for the government to make single renting individuals without kids pay more taxes (and yes, that is what tax credits for marriage, mortgages, and children do) but not to ask the same of those who refuse to purchase health insurance. It doesn’t seem much of a power grab to go from the former to the latter. Social engineering through the tax code was not invented by the ACA. The judgment doesn’t use these analogies but it is based on a similar functional logic.

This argument was rejected by many lawyers but it is still not entirely clear to me why. I am perfectly willing to defer to expertise but so far I have not been impressed by the efforts of law profs to communicate what precisely doesn’t make sense about the Roberts’ judgment from a constitutional perspective. One frequently recurring claim is that the court has never interpreted penalties of this type in this way. Ok, but there was no clear precedent either way. Ilya Somin appears to argue that if the mandate is a tax then so are penalties for speeding. That doesn’t strike me as right as the opinion very clearly states that Roberts finds the tax argument persuasive because the only legal consequence is a modest payment to the IRS. Richard Epstein has made what sound to me as curious arguments that the tax code should not be used to shift funds from one group of people to another. I can see that as a normative claim but surely this is precisely what the tax code is used for all the time. Then there is the argument that if the penalty were called a tax it may not have passed Congress. Maybe, but how is it up to the Court to make that determination?

There may be more convincing arguments out there that I haven’t seen (please point to them in the comments) but I still find the cocktail party argument very sensible. Now that doesn’t mean that Roberts thinks so too. I can see the inconsistencies in Roberts’ opinion (he clearly could have applied the same functional logic to the Commerce Clause determination) so perhaps that is evidence that he had different motivations. The Jan Crawford piece is, I think, ultimately inconclusive on the issue of motivations. Aside from the question of whether strategic motivations played a role (and I am inclined to believe that they did) it is still not clear what precisely the objectives were. Was it about setting precedent on the Commerce Clause while avoiding pushback? Was it about setting precedent or expectations about judicial restraint?  Some sort of balancing act between these goals? Or was it pure media pressure? Still, as these arguments go, one usually has to reject the straight legal claim before advancing to the strategic component. I am sure that more will come out on this issue but I am curious to see how scholars of judicial behavior think this case fits their theories and how it will be used in the future to illustrate the logic of strategic judicial behavior.

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