When is Judicial Behavior Political?

The debates about Chief Justice Roberts’ motivations for his health care opinion rage on with new leaks appearing almost every day. Randy Barnett responds to Jonathan Adler’s attempt at showing that Roberts’ opinion is quite consistent with his past judgments and legal views that consistency:

does not making his bending himself into a pretzel to uphold a law when the screws were put to him any less political. [..] 8 justices acted on principle:  4 on good principles and 4 on bad principles.

This probably reflects the majority view among legal scholars, although they differ on precisely which 4 justices acted on “good principles.” Nonetheless, to imply that this principled behavior is non-political is a bit silly. Indeed, Barnett writes that:


It is hard to imagine Republican politicians citing John Roberts as the type of justice they favor nominating in the future (as many did up until now).  Whether or not the decision does lasting damage to the Constitution and the Court, however, itself will depend on how the political process responds.  If the electorate proceeds to change the political party of the presidency and the Senate, then this decision could precipitate a turning point in constitutional law, leading to a much more faithful interpretation of the written Constitution.

In other words, the politics is in the selection. If voters elect the ‘right’ party then we get the ‘right’ interpretation of the Constitution. This is consistent with what political scientists call the attitudinal model of judicial behavior.

What differentiates the critique on Roberts is not that his judgment was political but that he acted strategically. His opinion allegedly did not reflect his “principles” nor legal precedent but took account of anticipated responses to his ruling by other actors that could affect Roberts’ long term goals, such as the legitimacy of the Court, the legitimacy of his own position, or the effect of legal precedent (e.g. the Commerce Clause interpretation).

Critics have not, however, been very specific about precisely what these strategic calculations might be. A favorite among Conservatives seems to be that Roberts bent to pressure from liberal media and lawmakers. I guess this is what Barnett implies with “when the screws were put to him.” I am not so sure what long term objective this would serve. If Roberts had gone the other way, most of the pressure would have been on Kennedy rather than Roberts given ex ante expectations. In many ways, he could have saved himself a lot of trouble by siding with the Conservatives. This makes me think that if his reasoning was indeed motivated by strategic concerns, it probably had something to do with long term perceptions about the Court rather than his person, especially his views about a more restrained role of the Court. But I am not sure if I have a clear model of this type of behavior. What do you think?


5 Responses to When is Judicial Behavior Political?

  1. jhe July 10, 2012 at 10:06 am #

    Is there a distinction in Poli-Sci between political and partisan? Seems to me the answer to your headline question is “always.”

  2. Scott Monje July 10, 2012 at 11:38 am #

    “. . . or the effect of legal precedent (e.g. the Commerce Clause interpretation).”

    If his intent was to limit the applicability of the commerce clause, wouldn’t he have strengthened his case by striking down the ACA on that basis?

    • Patrick Ley July 10, 2012 at 12:09 pm #

      @Scott Monje– there’s at least an argument that by delivering a holding which upheld the law, but rejected the Commerce Clause he leaves rejecting future law in a better position. Not striking down the law makes him look “moderate” “reasonable” whatever, and so his restriction of the Commerce Clause looks better.
      I don’t think it will actually play out that way, but it’s plausible that Roberts might think so.

  3. frankcross July 10, 2012 at 9:53 pm #

    Judges are always political. They’re involved in government. But they have a very different politics from the other branches. The most likely theory to me is that Roberts preferred not to strike down a huge statute on a 5-4 vote on straight political lines. But he wouldn’t have done it if he didn’t think he had a plausible legal case for his result. And he set up the precedents on the commerce clause that conservatives wanted, so he achieved a long term legal gain.

  4. PJR July 10, 2012 at 11:09 pm #

    Perhaps Roberts was being less political than Congress, Obama, and the four other conservative justices. Regardless of politically motivated word games, the law in effect imposes a conditional tax and clearly does not criminalize the failure to have health insurance.