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Saturday
Jun302012

What I have to say about Chief Justice Roberts, and how I feel, the day after the day after the health care decision

Gave my talk at the D.C. Circuit Conference.  Slides here.

The Chief Justice didn’t arrive until the break between my session and his. Hey—the guy deserves to sleep in on the first day after the end of a tough Term.

I wouldn't have said exactly this had he been there, but I will say now that I feel a sense of admiration for, and gratitude toward, him.  I also feel impelled to say that in reflecting on this feeling I find myself experiencing a certain measure of anxiety--about myself.

The gratitude/admiration is not for Roberts’s supplying the decisive vote in the Affordable Care Act case, although in fact I was very pleased by the outcome.

It is for the contribution his example makes to sustaining a vital and contested understanding of the legal profession and of law generally.

Roberts in his confirmation famously likened being a judge to being “an umpire.”

Judges saying what the law is must routinely employ forms of intellectual agency that umpires needn’t (shouldn’t) use in “calling balls and strikes.” But it’s not wrong to see judges as obliged in the same way umpires are to be neutral. Not at all.

There are comic-book conceptions of neutrality that are appropriately dismissed for characterizing as simple a form of practical reason that often demands acknowledging moral complexity.

There are sophisticated critiques of neutrality that are also appropriately dismissed for assuming the type of impartiality citizens expect of judges deciding cases is theoretically intricate rather than elemental and ordinary.

But to say that judicial neutrality is both meaningful and possible is not to say that it can be taken for granted. For one thing, it involves craft; legal training consists in large part of equipping people with the habits of mind and dispositions necessary for them to make reliable use of the tools that our legal regime (its doctrines and procedures) furnishes for assuring that the competing interests of citizens are reconciled in a manner that is meaningful neutral with respect to their diverse conceptions of the best way to live.

 Yet even when that craft is performed in an expert way, judicial neutrality is immensely precarious. This is so because meaningfully and acceptably neutral decisions do not certify their own neutrality, any more than valid science certifies its own validity, in the eyes of the public.

Communicating neutrality is a different thing altogether from deciding cases neutrally, and the legal system is at this moment in much more need of insight into how to achieve the former than the latter. Members of the profession—including judges, lawyers, and legal scholars—should collaborate to create that insight by scientific means. That was what I was planning to say to Chief Justice Roberts—and was what I said to the (friendly and spirited) audience of judges and lawyers who got up so early to listen to me at their retreat.

But however ample the stock of knowledge for communicating neutrality is, it will be of no use without real and concrete examples. Comprehension is possible only with instances of excellence, which not only supply the focus for common discussion but also the models--the prototypes--that guide professionalized perception.

Chief Justice Roberts gave us a model on Thursday.

I don’t mean to say that was what he was trying to do—indeed, it would demean his craft skill to say that he meant to do anything other than decide. But the situation created the conditions for him to generate a distinctively instructive and inspiring example of neutral judging, one that will itself now supply a potent resource for a legal culture that perpetuates itself through acculturation of its members.

One of those elements was the surprise occasioned by the difference between what we know of Chief Justice Roberts’s jurisprudential orientation and the outcome he reached.  That’s something that should make it obvious to us that he must have surprised himself in the course of reasoning about the case. If it's not possible for someone to reason to a conclusion that jarringly surprises him- or herself, then such a person doesn’t really know how to be neutral.

Another element was the predictable sense of dismay that his decision generated in others who share many of Chief Justice Roberts’s commitments, moral and political as well as professional. What makes this so extraordinarily meaningful, moreover, has nothing at all to do with the exercise of “restraint” understood as some sort of willful resistance to temptation.

It has to do with habits of mind. Our cultural commitments simultaneously supply us with materials necessary to make sense of the world and expose us to strong forms of pressure to understand it in ways that can be partial, and sometimes even false in light of other aims and roles that define us.

It is part of the mission of legal training to supply habits of mind and dispositions of character that enable a decisionmaker to find insight elsewhere when judging, and to see when the way of making sense of the world that is cultural is inimical to the way of making sense of it that liberalism demands of a state official in reconciling the interests of people of diverse cultural identities. The way in which Chief Justice Roberts used these habits of mind and relied on these dispositions also makes his decision exemplary.

A final condition that makes Chief Justice Robert’s decision such a rich instance of the neutral judging is the position President Obama, when he was a Senator, took on Roberts’s confirmation. Obama, of course, voted against Roberts on grounds that were, candidly, political in nature: “I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak,” Obama said in his speech opposing Roberts’s confirmation, “[b]ut given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.”

I don’t think it’s obvious that Obama was mistaken to take the position that he did. Among the forms of intellectual agency that a judge must use and that a baseball umpire never has to are ones that partake of “political philosophy.” Roberts, I’m sure, knows this. But I’m pretty confident that Obama at the time knew, too, that it’s questionable whether Roberts’s political philosophy—even if Obama measured it correctly—was a proper basis to oppose him. There can be no defensible assessment of Obama’s position one way or the other that doesn’t reflect appreciation of the complexity of the question.

That episode, though, makes it all the more clear that Chief Justice Roberts was not affected by something that could easily have left him with a feeling of permanent resentment.  Not affected, that is, by something he might legitimately have felt (might still feel) as a person but that is not pertinent to him as a neutral judge deciding a case.

I admire the Chief Justice for displaying so vividly and excellently something that reflects the best conception of the profession I share with him. I am grateful to him for supplying us with a resource that I and others can use to try to help others acquire the professional craft sense that deriving and applying neutral of constitutional law demand.

And I’m happy that he did something that in itself furnishes the assurance that ordinary citizens deserve that the law is being applied in a manner that is meaningfully neutral with respect to their diverse ends and interests. They need tangible examples of that, too, because it is inevitable that judges who are expertly and honestly enforcing neutrality will nevertheless reach decisions that sometimes profoundly disappoint them.

It’s in connection with this last point that I am moved to critical self-reflection.

As I said, I admire Chief Justice Roberts and am grateful to him for reasons independent of my views of the merits of Affordable Care Act case. I honestly mean this.

But I am aware of the awkwardness of being moved to remark a virtuous performance of neutral judging on an occasion in which it was decisive to securing a result I support. Or at least, I am awkwardly and painfully aware that I can’t readily think of a comparable instance of virtuous judging that contributed to an outcome that in fact profoundly disappointed me. Surely, the reason can’t be that there has never been an occasion for me to take note of such a performance—and to remark and learn from it.

I have a sense that there are other members of my profession and of my cultural/moral outlook generally who share this complex of reactions toward Chief Justice Roberts’s judging.

I propose that we recognize the sense of anxiety about ourselves that accompanies our collegial identification with him as an integral element of the professional dispositions that his decision exemplifies.

It will, I think, improve our perception to harbor such anxiety. And will make us less likely to overlook-- or even unjustly denounce--the next Judge whose neutrality results in a decision with which we disagree. 

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Reader Comments (3)

Justices Kagan and Breyer sure surprised me in siding with Roberts and four others in striking the expansion of Medicare! Hard for me to say, as I don't really follow this area of law very closely, but perhaps they are also worthy of your admiration.

June 30, 2012 | Unregistered CommenterDon

Was the writing as virtuous as the result? In Whose Eyes, we argued that results may be discounted if the reasoning isn't likely to inflame tensions. Might the joint dissent not be lauded for keeping its rhetorical powder relatively dry? Guess i'm trying to parse what makes the opinion - as opposed to result - especially admirable. Not least because once we've dissected the frog, we can replicate it!

July 1, 2012 | Unregistered Commenterdave hoffman

DB: good point! (Strange that this point doesn't figure in all the speculation about Roberts's "switch": "did they agree to join in striking down that part of Act in exchange for CJ's vote on mandate?!"

DH: Who reads these things! ;) And don't harm frogs.

July 1, 2012 | Registered CommenterDan Kahan

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