Wednesday, April 06, 2022

What Does "Reading the Opinion" Tell You?

In a speech the other day, Justice Barrett had a request of persons criticizing the Court for decisions they claim are politically- or results-driven: "read the opinion".

"Does (the decision) read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don't agree with, to determine what the Constitution and precedent requires?" she asked.

Americans should judge the court — or any federal court — by its reasoning, she said. "Is its reasoning that of a political or legislative body, or is its reasoning judicial?" she asked.

I am not the first to point out the irony of this request in conjunction with the Supreme Court's increasing propensity to issue "shadow docket" rulings, nearly always in tandem with the court's ideological preferences, rarely in the context of any actual emergency that might justify expedited decisionmaking (unless one views "too many Black people voting" as an emergency -- which, in fairness, the current Court does seem to treat as a five-alarm fire). Just today, the Court issued yet another one of these decisions staying a Clean Water Act ruling with no substantive opinion whatsoever for us to "read" and assess!

Still, in concept I think Justice Barrett's plea is a fair one. We should look at the actual reasoning of decisions to determine if they're legalistic or not; and that determination should not collapse into political agreement or disagreement with the outcome. For example, I disagree with the outcome of Boy Scouts of America v. Dale, and I also think that Justice Stevens ultimately gets the better of the legal issue in his dissent, but I don't think the majority there wasn't engaged in a good-faith effort "to determine what the Constitution and precedent requires."

By the same token, when one reviews the Supreme Court's recent decision to invalidate the OSHA vaccine mandate in defiance of crystal-clear statutory text on the basis of a concocted "major questions" doctrine which still shouldn't have militated against the plain language of the statute, I absolutely think it reads "like something that was purely results driven and designed to impose the policy preferences of the majority" and that's exactly how it should be treated.

(That's the thing about rhetorical questions: sometimes, you get the other answer.)

But there's a deeper point worth making here. One of the first legal research projects I ever embarked upon dealt with how southern courts dealt with challenges by Black litigants in the Jim Crow era -- most notably, in the Scottsboro cases. From our 21st century perch, we understand the rulings of the Alabama judiciary in those cases as little more than an extension of White Supremacist inclinations -- a "legalized lynching" that happened to have the trappings of a judicial proceeding. And I think that understanding is by and large correct .However, as I point out in my Sadomasochistic Judging article, that quality is very much not immediately apparent just from "reading the opinion". The Scottsboro opinions look, in terms of stylistic presentation, absolutely normal in the way they address precedents, make legal arguments, and so forth. If they are best explained as a reflection of Alabama's "policy preferences" of White Supremacy, there nonetheless is little about them that observationally distinguishes them from a "purely" legalistic endeavor.

The presupposition of Justice Barrett's request is that one who "reads the opinions" will be able to immediately spot the difference between contestable but nonetheless legalistic judging compared to pure results-driven hogwash. This presupposition is almost certainly untrue. That's not the same thing as claiming that all judging is results-driven. It means that whatever differences there are between results-driven and legalistic judging, those differences will not necessarily be facially apparent just by reading the opinions. Indeed, any judge worth their salt should be fully capable of dressing up their results-oriented logic in the trappings of legalistic language. Sometimes they do a better job of it than others (see, again, the OSHA case). But on the whole, it is far more myth than reality that even rancid lawlessness by the court will be "marked on the body of the text."

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