Roberts and Rationality

Dan Liechty | August 8, 2012

“Normal Dan” Dan Liechty

Circumstances conspired to put me on a “political news diet” for the last few weeks – no TV, no newspapers or magazines, no podcasts, no internet, very sparse radio contact. I have to say that once the withdrawal shock was weathered, it was pretty nice. What’s more, that the world could just keep right on going, even without me obsessively milking each medium to follow its every move. Furthermore, I felt much more relaxed and optimistic about our species the longer it lasted! But, of course, all good things must end, and like it or not I am now back home trying to work my way through the amassed pile of papers, mags, podcasts and Bill Moyers programs that were sitting here waiting for me. Did I learn anything from the experience? Probably nothing profound or that will stick. In any case, I’m back at it now, and noticing something others have missed.

There is an emerging consensus among academic social and political scientists that people do not make political commitments based on rational considerations of specific policies. Their research points toward the conclusion that across the political spectrum, conservative to liberal, people are heavily and even determinatively influenced by nonrational factors. Rational faculties are more likely to be employed in the secondary step of rationalizing decisions and commitments already made.

One version of this thesis getting a lot of attention right now is that of Jonathan Haidt, author of The Righteous Mind: Why Good People Are Divided By Politics and Religion (Pantheon, 2012). Haidt interprets research findings to conclude that people generally “pick a team” and then on specifics will line up behind whatever the team position is. This goes a long way in explaining why people will so consistently line up behind inconsistent positions on specifics (e.g., “Keep your government hands off my Medicare!”) and even support with a full head of steam policies that are directly contrary to their own personal best interests (e.g., the long-term unemployed person voting for those who will curtail unemployment benefits.) This often leaves liberals (who hold rationality in high esteem) scratching their heads confusedly. But liberals are prone to the same type of thing–misdeeds perpetrated by those on liberal side are much more easily overlooked and forgiven than the same misdeeds on conservative side.

There is a lot that could be done with this analysis, but it appears to break down when we consider the judgment rendered by Chief Justice John Roberts in the recent case concerning the constitutionality of Obama’s healthcare mandate. According to this view, we might have expected Roberts would line up dutifully with his “team” and find the mandate to be unconstitutional.

Instead, even though he dodged the direct question of the mandate, we find him weaving in and out to find some rationale for ruling favorably on the policy itself (as I only learned days later.) This was a real shocker to everyone! The conservatives clearly feel betrayed, that Roberts has double-crossed them and is not a reliable “team” player. Liberals discuss the possibility of welcoming Roberts into “their” camp. So while the team-analysis does seem to hold in terms of the follow-up reaction, it doesn’t seem to explain Roberts’s own motives.

Keep in mind that social science research is never intended to explain the motives of specific individuals in specific circumstances, but only that of large numbers of people in general circumstances. With that said, it seems clear to me that Roberts decided that by hook or crook the Obamacare policy had to be found constitutional. His resort to the taxing powers of the other branches allowed him to do this without total, in-your-face disagreement with “his” team on the question of the mandate. In other words, his brief was clearly a rationalization of a prior decision and not the basis for that decision.

Why this prior decision, when it would have been so easy to simply rule with the other four justices against the constitutionality of Obamacare? I suggest it has to do with the fact that Roberts is beginning increasingly to look at his court from the perspective of History. From this perspective, he sees that future historians will be writing about the Roberts Court as extremely activist and powerfully partisan. Although something like 40% of its actual decisions have been 9-0 or 8-1 (in other words, representing a clear court consensus–cause for at least some optimism about our divided political present) the remaining 60%, which are often the much more visible cases, have been down the line 5/4 decisions in which the majority unapologetically align themselves with the conservative point of view. Roberts understood that if, in the heat of this election year, there were to be yet another in a long line of 5/4 decisions on key watershed issues, this time against the healthcare mandate, thus effectively gutting the main positive policy achievement of Obama’s first term of office, the judgment of History will doubtless be that under John Roberts, the Supreme Court degenerated into little more than a submissive handmaiden of the Republican Party. Obviously, Roberts wanted desperately to avoid this judgment of History, and he found a way to do it (or at least mitigate it somewhat.)

I am surprised that no one else appears to have noticed this (at least I haven’t seen it mentioned in the post-decision analyses I have read so far) but it is really the only way I can make sense of the motives for his decision, and the Byzantine brief he wrote to rationalize it. We’ll have to see if it results in more unexpected twists and turns in future cases.

2 Comments

  1. Although ideologically he is conservative, Roberts is a jurist’s jurist. He applied the law to the facts of the case like any good judge. If it looks like a tax, walks like a tax etc., then it is a tax no matter what label is on it.

    Roberts is loyal only to what he considers to be legal purity. He is a lawyer first and an ideologue second. You may not think that people like this exist, but if you don’t you are wrong. I am a hearing officer and every day I make decisions that go against my philosophical beliefs simply by applying the law to the facts of the case. There are a lot of lawyers out there who are like me. It is what we are educated to do—“think like a lawyer.”

Leave a Reply

Required fields are marked *.