The Cocktail Party Argument And Strategic Judicial Behavior

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.

8 Responses to The Cocktail Party Argument And Strategic Judicial Behavior

  1. foosion July 3, 2012 at 7:58 am #

    Two of the largest parts of legal reasoning are deciding when two things are close enough to be considered the same (what’s the better analogy for the situation) and whether allowing ABC to happen could lead to allowing XYZ to happen, where XYZ is a bad thing (the slippery slope argument). These are judgment calls, not black and white distinctions.

    Also, almost any case that reaches the Supreme Court can be decided either way. If the answer were clear, it’s not likely the case would have reached the Court.

    In this context, it should be obvious that cases get decided based on things other than the strict application of legal principles. Legal principles are used to justify decisions at this level, not reach them. Law is not math.

    Remember that Roberts is a corporate lawyer who spent his career representing businesses. Lots of new money goes to business interests under the ACA. The classic “cui bono” seems especially apposite to analyzing Roberts’ decisions.

    • matt w July 4, 2012 at 1:04 pm #

      I agree; it’s possible to think both that Roberts’s argument is constitutionally sound and that his decision was motivated by strategic thinking.

      In particular, though not a lawyer I think it’s pretty clear that at least some of the dissenting justices were motivated by their partisan political views rather than any sort of higher legal principle. (The tell is the way that Scalia suddenly discovered that Wickard v. Filburn needed to be overturned in between the medical marijuana case and this one.) So the question for me is, why didn’t Roberts vote with the other conservative justices? It may be that he did decide the case on a higher legal principle, or it may be that his partisan politics don’t align with the others in quite the same way (I have a hunch that he may have been put off by the insistence on striking the whole law, which IMO was a fairly naked partisan move), or he may have been engaged in strategic thinking. But even if I think he largely made the right decision, I don’t have to think he did it for the right reasons.

  2. Prison Rodeo July 3, 2012 at 8:46 am #

    A frustrating thing with trying to engage lawprofs is that they often see any single inconsistent case/example as “disproving” a theory or theoretical framework. But their tendency toward the (sorta) contrapositive — believing that any single example of a phenomenon means that the theory is correct — can be equally frustrating. Moreover, this latter thing is something social scientists often slip into doing as well.

    The point is: No one save Roberts, and possibly not even he, can say exactly what his motivations were in NFIB. Nor should we try, or even care, particularly. Just as hard cases often make bad law, “big” cases (Brown, U.S. v. Nixon, BvG, NFIB) often make bad evidence.

  3. John Cobb July 3, 2012 at 2:37 pm #

    I think the major reasons (in decreasing order of importance) are:

    (1) there are two separate provisions in the PPACA one of which says that persons must purchase health insurance and another of which says that not purchasing health insurance will result in a penalty. The interpretation Roberts adopts says the mandate is identical to the second provision. This makes the first provision entirely meaningless. This violates the “rule against surplusage,” a rule of thumb in statutory construction that says you should not read a statute in a way that makes some of its provisions meaningless.

    (2) Each of the two provisions listed above has its own set of exceptions. It makes no sense to create a separate class of exceptions for the requirement to obtain health insurance and for the penalty if the requirement and the penalty are the same thing.

    (3) Roberts did not even bother addressing these first two points in his opinion, which means he was being either uncharacteristically sloppy or he was being evasive. One reason for him to be evasive is because he does not sincerely believe in the merits of his decision.

    (4) Roberts opinion is closely aligned with an old jurisprudential view (mostly attributed to Holmes, although it’s not clear that he believed it) that the law was just a command to either obey the law or to suffer the consequences and was indifferent between these two outcomes. This view has generally been seen as discredited by the work of Henry Hart.

  4. Jon July 3, 2012 at 9:51 pm #

    An attempt to address your confusion concerning the cocktail party argument:

    The cocktail party argument assumes that the mandate/penalty is a tax when that is the core of the dispute. As you note, we’re dealing w/ two distinct sources of congressional power: commerce clause and tax. They don’t run together and have to be analyzed separately. The fact that Congress could achieve Objective A through its (broader) taxing power does not mean that a law, seeking to achieve the same Objective A, is okay under the (narrower) commerce clause. To take up your example: Congress could not pass a law under the commerce clause ordering all Americans to marry/have children/buy a house; and make failing to engage in those activities a crime (punishable, e.g., by a fine). However, it is free to encourage the same behavior under its broader taxing powers – giving individuals who engage in the behaviors a tax break.

    The problem w/ the ACA is that it wasn’t drafted as an exercise of the taxing power. It was deliberately drafted as an exercise of authority under the commerce clause (the NYT has published a few articles about this recently). Thus, Roberts had some work to do (I think that’s fair whether you agree with the opinion or not) to uphold the Act under the tax power; to find the “penalty” provided for violating the law (the individual mandate) was a constitutionally permissible tax.

    As to the issue of people (or at least non-lawyers) searching for explanations for Roberts’ behavior: think the Administration’s litigation strategy is part of the answer. Although the administration forcefully advanced the tax power as an alternative source of authority for the Act in some of the lower court cases, it really downplayed the argument before the SC; and it never really raised, much less explained, the argument outside the courtroom. Thus, the surprise at Robert’s ruling; and the feeling that something untoward had happened.

  5. Jon July 3, 2012 at 10:09 pm #

    Read the post a bit too quickly. You mix arguments and questions a couple times there – but it seems you’re seeking an explanation as to why lawyers rejected the argument that the penalty is a tax; and not why the cocktail argument (basically the tax power argument), in and of itself, didn’t end the case. You’re not going to find a conclusive argument there.

  6. Erik Voeten July 5, 2012 at 2:59 am #

    My post wasn’t well constructed. The strategic model goes beyond arguing that judges vote their ideological or policy preferences (and legal precedent) towards saying that they sometimes act in ways that seem out of touch with these preferences in order to achieve a goal, such as enhance the legitimacy of their court. Any argument that Roberts acted strategically needs to be precise about what those goals were and how he could have thought to achieve them with this opinion. I mixed it up with a little frustration about the many strongly worded op-eds about the legal soundness of the opinion that in did not back up those strong words with convincing logical arguments.

  7. Peter Hovde July 5, 2012 at 12:21 pm #

    To link some some of the arguments above to strategic/attitudinal thinking-the law was framed in such a way that Justices could, using a standard toolkit of judicial arguments, reject the tax argument if they wished to strike the mandate. Most legal observers assumed that justices who rejected the Commerce Clause argument would be ideologically opposed to the mandate, and thus would not be inclined to accept the tax argument. That’s the first reason that Roberts’ use of the tax ground is viewed as strategic rather than either ideological or doctrinal (to the extent that they can be separated). Then, of course, we have Roberts’ switch, and the strong evidence that he actually authored much of what became the dissenting opinion.