Althouse: "I know it's your job to assert that these decisions are based on legal reasoning, but that sure is a hard job after this week."

June 28, 2015

"I know it's your job to assert that these decisions are based on legal reasoning, but that sure is a hard job after this week."

Says Bob R in the comments to the previous post. My response: "No, it isn't. I just need to observe and then I know what legal reasoning is."

There are many other things about teaching cases like Obergefell that are hard, but what the Justices choose to put in writing automatically represents what counts as legal reasoning. It's not my job to convince anyone that what's in writing aligns with what went through their head. I expect everyone to wonder about that. And it's not my job to convince anyone that the various statements in the opinions cohere or are, in some way, truly legal. Think your own deep thoughts about that.

ADDED: If I were to see law teaching as needing to convince people that the written opinions are coherent and correct — a series of well-grounded legal propositions flowing one from another — I would be doing the same thing the Court does. That would amplify whatever deceit is in the opinions.

48 comments:

Jaq said...: OK, I think I have the legal principle worked out: "Starry-eyed decisis."; 6/28/15, 8:30 AM
Birkel said...: So, beyond writing academic papers nearly nobody will read, your job is to train future lawyers in politics by other means, wrapped in the veneer of 'reasoning'.

That is fun.; 6/28/15, 8:31 AM
CStanley said...: LOL Tim has a thread winner right out of the gate.

I think what you are saying makes sense as a law professor, but for integrity's sake some of your readers would like you to admit that the legal reasoning here isn't sound even though you like the outcome,; 6/28/15, 8:39 AM
Bob Ellison said...: Ted Olson was on Fox News Sunday today. It was a fantastic analysis of both of the big SCOTUS cases. That guy is brilliant.; 6/28/15, 8:43 AM
rhhardin said...: Epstein detects and traces the effects of mistakes, because he's working from the principles underlying the Constitution.

From a teaching perspective, it's probably easier to remember stuff that way -- working principles plus errors made.

Anyway it lines up better with intuition.; 6/28/15, 8:48 AM
CarlF said...: As a summary of the legal reasoning in Obergefell, Ann leads her law students in song, "Feelings, nothing more than feelings."; 6/28/15, 8:53 AM
Anonymous said...: The reasoning is as logical as a haruspex rooting through chicken entrails.
They find the reason they were looking for.; 6/28/15, 8:57 AM
n.n said...: #CynicalAlthouse?; 6/28/15, 9:02 AM
virgil xenophon said...: Why has anybody over the age of, say, 12 and with an IQ even just marginally into double-digits been surprised at the fact that SCOTUS is ENTIRELY a political animal? Its been that way since at least the time of FDR.; 6/28/15, 9:12 AM
Ann Althouse said...: If it's political, it's a different way of being political.

But who are you to define "political"? You're just making "political" mean what you need it to mean.; 6/28/15, 9:16 AM
Roughcoat said...: But who are you to define "political"? You're just making "political" mean what you need it to mean.

Okay, I'll bite. What is the objective meaning of "political"?; 6/28/15, 9:21 AM
Anonymous said...: Commnet #1 tim in vermont @6/28/15, 8:30 AM:

Excellent.; 6/28/15, 9:25 AM
Anonymous said...: AA: But who are you to define "political"?

Who do I have to be?; 6/28/15, 9:26 AM
n.n said...: Roughcoat:

The etymological definition derives from citizens or state. The practical definition is the process of negotiated or dictated consensus. Both definitions implicitly refer to a bias or prejudice (e.g. "politically correct").; 6/28/15, 9:29 AM
n.n said...: tim in vermont:

That is a comprehensive description of the majority opinion. Perhaps you could express it in the form of a hash tag. The kids will love it. It will be all the bumper sticker rage.; 6/28/15, 9:35 AM
Roughcoat said...: n.n.:

I'm not clear on what you're saying but I suspect you're leaving something out of the definition. I'm not being snarky here. How does the definition you provide relate to Virgil's comment and Althouse's response to it?. It seems to me that Virgil's subsequent response ("Who do I have to be?") gets closer to the nub of the matter, if only by implication.

Again--and I want to be clear about this--I'm not attempting snark. I'm genuinely interested in what you, Virgil, and Althouse have to say on this issue.; 6/28/15, 9:36 AM
Roughcoat said...: I mean Anglelyn's response ("who do I have to be") to Virgil's and Althouse's post. Apologies.; 6/28/15, 9:37 AM
Michael K said...: The reason why Franklin told the lady "A Republic if you can keep it" was because democracies die sooner than Republics. Athens destroyed itself in the Peloponnesian War when it recalled Alcibiades on a whim. Rome lasted longer because it was a Republic until Caesar.

We were once a Republic but we are now a democracy and are doomed by that.

Kennedy's decision reasoning explains why.; 6/28/15, 9:51 AM
Chuck said...: For years in these comments pages I have challenged Professor Althouse to identify just when, and how, a Constitution that was drafted and amended when same sex marriage was legally unthinkable and when homosexual sodomy/buggery was almost universally outlawed, became a document that not only permitted same sex marriage (no big deal to me) but REQUIRED same sex marriage.

Don't anyone dare to cite Loving v. Virginia to me. Antimisecegination laws were not universal when the Constitution was adopted and the fact that such laws were essentially racist in their intent meant that they ran afoul of much of text and menaing of the Civil War amendments and a variety of duly enacted racial antidiscrimination laws.

Professor Althouse never answered the question before, and probably won't now. I think the question put to her, about how she might teach Obergefell, is a wonderful question and I'd like to be in her class for it. All that she can say is that the case doesn't much follow the very long line of 14th Amendment cases stretching back decades. To her credit, Althouse has already conceded that the Kennedy opinion is almost entirely lacking in traditional legal analysis. That is unquestionably true.

What I don't understand is Althouse's standoffish attitude toward that state of affairs. Law profs frequently criticize judges and judicial opinions. They explain, they opine, they analyze. They like the processes of analysis that they teach, and if there were any "rules" for Constitutional interpretation in Obergefell, I submit that Kennedy (and the other four in the majority) simply disregarded that process and the four dissenters were so angered and outraged by that disregard that they all wrote dissents, all saying much the same thing about Kennedy's abject lack of legal reasoning.

I continue to recall and post on the Althouse comments pages the admonition from Justice Scalia in Lawrence v. Texas; on the day that a Kennedy 5-4 majority ruled in that case, Scalia wrote:

"Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653."

I think it is incumbent on conservative lawyers in particular, to take back their profession from the monopoly of authoritarian liberals. In the future we will see that young lawyers who are social conservatives will be shunned for judicial clerkships, law school faculties, law firm partnerships, and all manner of private means of advancement in the profession.; 6/28/15, 10:38 AM
hombre said...: "I just need to observe and then I know what legal reasoning is."

It just keeps getting better and better! First the polygamy nonsense, now this.; 6/28/15, 10:54 AM
bleh said...: Althouse believes in ipse dixit legal reasoning then? Supreme Court decisions are frequently wrongly decided, and it's the responsibility of lawyers and judges and the legal professoriate to say so. The Court is not immune to criticism. They may say what the law is, but their authority depends in part on their credibility among the people. That's one of the reason courts publish opinions; not just to provide guidance but also to publicly state their reasoning and subject it to scrutiny.; 6/28/15, 10:56 AM
Ann Althouse said...: "Okay, I'll bite. What is the objective meaning of "political"?"

What do you mean by "objective"? "Political" is a buzz word in certain types of criticism of courts. It capsulizes an opinion. What's the point of getting to something supposedly objective here? I'm only interested in your motivation, obviously, not what you actually think "objective" means. This move to demand objectivity feels like a shortcut to an answer you already have in mind.; 6/28/15, 11:08 AM
Ann Althouse said...: Here's the relevant definition of "political" from the OED:

"Involved, employed, or interested in politics; that takes a side, promotes, or follows a particular party line in political debate. Also (somewhat derogatory): having regard to or affected by the interests of a party or parties rather than principle; partisan, factious."; 6/28/15, 11:10 AM
Ann Althouse said...: 1704 Swift Tale of Tub v. 116 "For whereas, we are assured, he design'd his Work for a compleat Body of all Knowledge Human, Divine, Political, and Mechanick; it is manifest, he hath wholly neglected some, and been very imperfect in the rest."; 6/28/15, 11:11 AM
Chuck said...: James Taranto of the Wall Street Journal, who knows Althouse and who is very much known to Althouse... On legal reasoning in Obergefell and, in particular, polygamy:

http://www.wsj.com/articles/after-obergefell-1435341928?cb=logged0.81807006739069

(I am a WSJ subscriber; I hope that the link is not paywalled and I apologize if it is.)

And, apropos to my earlier concern about the future makeup of the highest levels of the American legal profession, Taranto saw fit to use this lengthy quote from Scalia in his Obergefell dissent:

"Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation."

Taranto made note of the "California does not count" parenthetical, and so would I. I suppose that someone could make a case that for the first 200+ years of the nation, all Supreme Court justices were white male Anglo-Saxon Protestants. That's not quite true, but the point remains. Scalia would simply say, "Yes; and neither type of court is qualified to rule the lives of Americans."; 6/28/15, 11:14 AM
Gahrie said...: Shorter Althouse:

I have to pretend to see the penumbra too.; 6/28/15, 11:28 AM
Gahrie said...: But who are you to define "political"? You're just making "political" mean what you need it to mean.

You mean like Kennedy defined "marriage" to mean what he needed it to mean?; 6/28/15, 11:30 AM
chuck said...: but what the Justices choose to put in writing automatically represents what counts as legal reasoning.

Nonsense. And that is the point, the opinions of the court do not automatically represent legal reasoning and it is legitimate to regard the court decisions as illegitimate. The legitimacy of the court is a social construct, and that construct is open to deconstruction. That is not a new idea, the left has worked for more than a century to delegitimize the government and have had some success in doing so. History moves on, what was once vital decays, and we will see where it all ends up. Constitutional law is a study of mythology, you might look to change departments.; 6/28/15, 11:33 AM
Gahrie said...: but what the Justices choose to put in writing automatically represents what counts as legal reasoning.

This is exactly why we should not have turned over the Supreme Court to lawyers. There is nothing that says the Justices have to be lawyers.; 6/28/15, 11:54 AM
Gahrie said...: You mean like Kennedy defined "marriage" to mean what he needed it to mean?

By the way, is Meade finally ready to admit that Kennedy did define marriage?; 6/28/15, 11:55 AM
virgil xenophon said...: You want political, AA? OK, lets compare the Steel Seizure case (Youngstown Sheet & Tube Co. v Sawyer) in which SCOTUS essentially tied the hands of a President by allowing steel-workers to strike during war-time (Korea) and thereby endangering American troops because of ammunition shortfalls, with the FDR WW II Japanese detention case (Korematsu v US) in which essentially the very same court refused to restrain the Presidential powers of FDR (which is still "good law" btw) unlike the way they restrained Truman. Why? I would opine that the SOTUS refused to tie the hands of FDR for the same reason no worker would have dared to go out on strike in WW II, i.e., the belief that this nation was in a struggle for its very existence and no one wanted to risk courting disaster. The Korean War, by contrast, was most definitely NOT regarded as an existential threat to America and thus the SCOTUS felt free to tie a President's hands. Now the logic by which they did so applied equally to Korematsu, but whose counting the law,Constitution, precedent, facts and logic here--were talkin' POLITICS Grrrl!; 6/28/15, 11:59 AM
Quaestor said...: The king's will is law, therefore the king cannot transgress the law. Now there's an internally coherent concept of legality that has been argued once or twice. The same idea was re-phrased by somebody on television, If the president does it it's legal, or something like that. Who was that guy?; 6/28/15, 12:03 PM
virgil xenophon said...: PS: I mean that both cases CANNOT, by logic and facts, be considered "good law." If Korematsu is good than Youngstown is bad--and visa versa. One can't have it both ways unless one is--wait for it!--political.; 6/28/15, 12:10 PM
Jaq said...: I think that in a democracy, the people and their representatives get to be political and the SCOTUS is supposed to be some sort of umpire who should strive for impartiality. I learned that in high school civics and I am embarrassed to admit that I believed it up until this term of the court.

Now I know that the way these things are decided is something like this.

"I saw what I saw, but if it's a ball, their side wins and if it's a strike, my side wins, therefore it was a strike. Yay! Everybody celebrate!"; 6/28/15, 12:18 PM
Roughcoat said...: Althouse:

Fair enough. Now I know what you mean.; 6/28/15, 12:24 PM
mccullough said...: Tim,

The Supreme Court has always been political, which is why they are nominated by the President and approved by the Senate. We should amend the Constitution so they are elected by the people for a 12 year term. They have too much power, like the other two branches.; 6/28/15, 12:39 PM
Roughcoat said...: Andrew McCarthy says it better than I can in "Let’s Drop the Charade: The Supreme Court Is a Political Branch, Not a Judicial One"

Read more at: http://www.nationalreview.com/article/420417/supreme-court-john-roberts-marriage-health-care-constitution; 6/28/15, 12:53 PM
Zach said...: The legal concept you are searching for is "devil's bargain."

It's where someone trades something very precious for something they could have had easily by other means.

The Obamacare decision could have been duplicated by a one sentence bill, if that one sentence had any political support. But instead we have the Executive ignoring statutory text, and the Supreme Court turning somersaults to prevent the Legislature from having the chance to reconsider the law.

We have seen this before. It never works out well, anywhere it has been tried.; 6/28/15, 1:40 PM
Chuck said...: As someone who loathes this decision and who thinks it is so much legal garbage, I have little regard for some of the institutional complaints now levied at SCOTUS from the right. The answer is a better federal judiciary. It wasn't just Kennedy; it was four others in addition to Kennedy who were determined to judicially impose gay marriage on the United States. A whole flock of judges and justices. And we let the Left take down the man whose rightful place in history was taken by Kennedy. That was Judge Bork.

Consistently through the last couple of generations in Washington, the Left has seen the federal courts and the Justice Department as their private domain, and have been willing to do anything to preserve their prerogatives there.

We need to elect a President, and a Senate, and adopt a relentless no-compromise strategy, to re-populate the federal judiciary and Justice Department.; 6/28/15, 2:00 PM
damikesc said...: It wasn't just Kennedy; it was four others in addition to Kennedy who were determined to judicially impose gay marriage on the United States.

Not much can be done about leftist justices. Everybody knows how they'll vote on every single case before the oral arguments begin. There isn't a fix as long as people insist that the Justices be lawyers.; 6/28/15, 2:28 PM
Jason said...: THERE ARE FOUR PENUMBRAS!!!!; 6/28/15, 2:38 PM
jr565 said...: THERE ARE FOUR PENUMBRAS!!!!

They're a pop band. The Four PENUMBRAS! With their hit "Starry Eyed decisis"
Althouse LOVES it!; 6/28/15, 3:09 PM
Bob R said...: Touche. The "it's your job" part was mostly a joke. But it must be discouraging to spend your days teaching people to write tight arguments and seeing that if you have the votes you can pass off the mush turned out by the Kennedy and Roberts decisions. Kennedy had no excuse, there were plenty of cogent equal protection arguments given in the amicus briefs (e.g. Ilya Shapiro’s.) With Obergefell, you can argue either side from constitutional text and precedents. Maybe some day we'll get lucky and the swing vote won't be the worst writer on the court.

To respond to Chuck and lead in to a screed on Roberts (and by extension, Bork) my view is that it is precisely the court's job to hold the elected branches to consequences of the constitution and other legislation that those passing it did not expect. There were many people who voted for both the ratification of the First Amendment and the passage of the Alien and Sedition Acts. There was no judicial review until after the acts had expired, but I certainly consider it the court's job to put a stop to that kind of nonsense. Now, the interpretation of the equal protection clause in the case of Obergefell isn't as clear, but we should arguing about the text, not intentions.

Which brings me to the cowardly John Roberts. I'm sure it must be unpleasant to take insurance subsidies away from millions of people. But when the executive branch violates the clear meaning of the text of a terribly written, unworkable law ... well John Roberts (Bork's evil twin - Bork had the beard and he doesn't) will defer to the elected branches. Bork and Roberts are the people that Madison warned about when he was worried about the Bill of Rights. They view(ed) the Constitution as tiny islands of rights in a vast sea of deference to the majority. The tenth amendment and the arguments supporting it can be blissfully ignored. (The left used to hate this idea. Now that they have or are gaining a majority on some issues (like gay marriage), their views have changed.); 6/28/15, 4:01 PM
Anonymous said...: @Bob R I don't see Roberts as cowardly so much as monomaniacally obsessed with deference to the legislature, to the point where he will find any excuse to save a superseded session of Congress from its own negligence.; 6/28/15, 5:01 PM
Anonymous said...: Also, if Roberts were nearly as clever as he is supposed to be, he would have signed on to the majority opinion and written it himself, carefully crafting a rearguard action in a much stronger defense of religious freedom (doing it subtly enough that the other 5 would still sign on).; 6/28/15, 5:11 PM
Bob R said...: @digs0 How is it "deferring" to the legislature to ignore the clear meaning of the words they put in the law? He was deferring to the President, putting a fig leaf on a clearly illegal action. Of course I have no way of proving it, but I don't think he wanted the court to be blamed for taking away the subsidies of millions of people.; 6/28/15, 7:01 PM
stan said...: As a matter of self interest, law professors should teach students that the law needs to be logical and consistent. Otherwise, the citizens realize that the law is crap and lawyers get smeared with it. Accordingly, one necessary part of teaching law is to discuss where judges get cases wrong and why.

Any law professor (especially a con law prof) who fails to discuss with students the possible societal problems that could result from having a Court and a legal system unmoored from logic and rationality is doing a disservice to all.

A contracts professor ought to discuss what happens in business when contracts cases are decided by a judge's feelings. What happens to mortgages when default provisions are routinely ignored?

What happens in a Constitutional republic when the citizenry realizes that the Constitution is a joke? That the president is unaccountable for his lies, his lawlessness and his usurpation of power. That the Supreme Court has no interest in fidelity to legal principles, no interest in the plain meaning of words, and no interest in upholding the rule of law and the role of law in their lives ?

If professors don't talk about these issues in law school, when will they be discussed?; 6/29/15, 9:50 AM
Anonymous said...: @BobR I'm not saying he's successful or logical in that regard, just that he seems to have this obsession about it. I don't think he's deferential to Obama or even the presidency per se. Tons of rulings have smacked down the current administration.; 6/29/15, 11:30 AM