Colleague Kenny Ching has posted a new article: Roberts on Obamacare: Liar, Lunatic, or Legitimate? (abstract here). Allusive as it may be, Ching's new title is not as provocative as his previous Would Jesus Kill Hitler? (about which see my post here).
In any event, Ching applies his previous argument in favor of objectivity to the (in)famous 2012 Supreme Court decision in National Federation of Independent Business v. Sebelius, commonly called the Obamacare case.
Ching's jural opposite of objectivity is not subjectivity but ideology. Judges are not judicial machines devoid of political and other predilections but they are (or at least we should afford them the initial presumption that they are) honest. And given Chief Justice Roberts's reputation for probity, we should begin by believing that he believed in his reasoning in that case. He was not, in other words, lying.
Ching analyzes Roberts's opinion at some length and also concludes that he isn't a lunatic either; it's neither disingenuous nor delusional to conclude, on the one hand, that the individual mandate is not a tax for purposes of the Anti-Injunction Act but is one for purposes of finding a constitutional tether. For those who find Ching's conclusion incredible, I suggest that you read the article.
Neither of Ching's principal contentions requires one to believe Roberts's opinion is correct. One can be honestly and sanely in error. I may have been been thusly erroneous myself on an occasion or two, or so I've been told. I'll leave the correctness of the Chief Justice's ultimate conclusions to the con law mavens, which certainly doesn't include me. I do, however, want to make several comments on Ching's understanding of judicial objectivity and our correlative duty to give judges' public reasoning the benefit of the honest doubt.
First, were we to presume as a matter of course that judges lie when rendering some decisions, there would be no principled reason to doubt that they lie in all cases. But if we presume that, there's even less reason for anyone to believe that we aren't lying when we accuse judges of lying. A riff on the liars paradox.
And even if we employ a weaker presumption: that judges in highly politicized cases tend to lie about the reasons for their decisions, we undercut the credibility of all public reasoning because the honesty of our politically oriented arguments should likewise be subject to a presumption of systematic doubt, a position that renders at least me very uncomfortable. All of this reminds me of my earlier posts on the recent work of political philosopher (and law professor) Jeremy Waldron (see here and here), a writer whose perceptive analysis of the rule of law and the place of precedent in constitutional adjudication I highly respect.
Yet all of this praise for judicial objectivity, employing a presumption of judicial truthfulness, and care for the rule of law should not blind us to the nature of objectivity in Ching's use of the term. For Ching, "objectivity" is methodological, not metaphysical or ethical. For an argument (judicial or otherwise) to be properly objective it must possess three characteristics: "(1) the judgment must be independent; (2) it must be capable of being assessed for correctness; and (3) it must be intersubjectively invariant." Ching expands on the meaning of each of these operative terms so I won't. However, I think it is important to remember that deep rooted social or communal biases can (re)direct the human heart (see my John Calvin's Application of Natural Law article here for a discussion of the "heart") so that an argument can be methodologically objective yet ethically reprehensible. Honest and rational judicial application of Reconstruction-era Jim Crow laws come to mind.
Moreover, one can imagine how a dishonest judge could feign the appearance of objectivity. Although for Ching "independence" requires that a judicial argument "must not be the product of improper factors like bias, idiosyncrasy or ideology," there is no way that a reader can know if a particular decision is independent. While I agree that we should start with a presumption of independence--which seems particularly well-warranted in the case of Chief Justice Roberts--that presumption is far from irrebuttable. A presumption of independence doesn't require a panglossian naivete. And, based on my professional experiences, I suspect that my personal presumption of judicial independence (and hence objectivity) is more easily rebutted than Ching's.
All in all, I commend Roberts on Obamacare. It is important during in this era of the centrality of a politics of suspicion and a talk radio depth of analysis that we not immediately jump to the conclusion of untruthfulness of a judge whose opinion strikes us as wrong. Christian charity requires more.
In any event, Ching applies his previous argument in favor of objectivity to the (in)famous 2012 Supreme Court decision in National Federation of Independent Business v. Sebelius, commonly called the Obamacare case.
Ching's jural opposite of objectivity is not subjectivity but ideology. Judges are not judicial machines devoid of political and other predilections but they are (or at least we should afford them the initial presumption that they are) honest. And given Chief Justice Roberts's reputation for probity, we should begin by believing that he believed in his reasoning in that case. He was not, in other words, lying.
Ching analyzes Roberts's opinion at some length and also concludes that he isn't a lunatic either; it's neither disingenuous nor delusional to conclude, on the one hand, that the individual mandate is not a tax for purposes of the Anti-Injunction Act but is one for purposes of finding a constitutional tether. For those who find Ching's conclusion incredible, I suggest that you read the article.
Neither of Ching's principal contentions requires one to believe Roberts's opinion is correct. One can be honestly and sanely in error. I may have been been thusly erroneous myself on an occasion or two, or so I've been told. I'll leave the correctness of the Chief Justice's ultimate conclusions to the con law mavens, which certainly doesn't include me. I do, however, want to make several comments on Ching's understanding of judicial objectivity and our correlative duty to give judges' public reasoning the benefit of the honest doubt.
First, were we to presume as a matter of course that judges lie when rendering some decisions, there would be no principled reason to doubt that they lie in all cases. But if we presume that, there's even less reason for anyone to believe that we aren't lying when we accuse judges of lying. A riff on the liars paradox.
And even if we employ a weaker presumption: that judges in highly politicized cases tend to lie about the reasons for their decisions, we undercut the credibility of all public reasoning because the honesty of our politically oriented arguments should likewise be subject to a presumption of systematic doubt, a position that renders at least me very uncomfortable. All of this reminds me of my earlier posts on the recent work of political philosopher (and law professor) Jeremy Waldron (see here and here), a writer whose perceptive analysis of the rule of law and the place of precedent in constitutional adjudication I highly respect.
Yet all of this praise for judicial objectivity, employing a presumption of judicial truthfulness, and care for the rule of law should not blind us to the nature of objectivity in Ching's use of the term. For Ching, "objectivity" is methodological, not metaphysical or ethical. For an argument (judicial or otherwise) to be properly objective it must possess three characteristics: "(1) the judgment must be independent; (2) it must be capable of being assessed for correctness; and (3) it must be intersubjectively invariant." Ching expands on the meaning of each of these operative terms so I won't. However, I think it is important to remember that deep rooted social or communal biases can (re)direct the human heart (see my John Calvin's Application of Natural Law article here for a discussion of the "heart") so that an argument can be methodologically objective yet ethically reprehensible. Honest and rational judicial application of Reconstruction-era Jim Crow laws come to mind.
Moreover, one can imagine how a dishonest judge could feign the appearance of objectivity. Although for Ching "independence" requires that a judicial argument "must not be the product of improper factors like bias, idiosyncrasy or ideology," there is no way that a reader can know if a particular decision is independent. While I agree that we should start with a presumption of independence--which seems particularly well-warranted in the case of Chief Justice Roberts--that presumption is far from irrebuttable. A presumption of independence doesn't require a panglossian naivete. And, based on my professional experiences, I suspect that my personal presumption of judicial independence (and hence objectivity) is more easily rebutted than Ching's.
All in all, I commend Roberts on Obamacare. It is important during in this era of the centrality of a politics of suspicion and a talk radio depth of analysis that we not immediately jump to the conclusion of untruthfulness of a judge whose opinion strikes us as wrong. Christian charity requires more.
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