Balkinization  

Wednesday, July 04, 2012

"Changing His Mind" versus "Making Up His Mind"

Mark Tushnet

My sense is that the narrative that the Chief Justice "changed his mind" in NFIB has taken reasonably firm hold -- certainly in the conservative blogosphere, and to some extent in the liberal one as well. I've suggested an alternative narrative, that he "made up his mind" as he worked on his opinion. Why might  "changed his mind" have more purchase than "made up his mind"? (1)  Simplicity. But that's a vice in settings when we're dealing with issues of personal decision-making within institutions in connection with complex matters. No one writing about how foreign policy is made, for example, would think it sufficient to say, "The Secretary of State changed her mind," without providing a much thicker description of the informational and institutional setting in which the change in views occurred.  We don't yet have anything approaching the required thickness about the Chief Justice's decision-making process.

Probably more interesting, (2) "Politics large and small." Liberals like the "changed his mind" narrative because it helps them with the argument they've been making against conservative constitutional theorists, that politics in the large -- visions of the Constitution's meaning set in a framework connected to but somewhat independent of quotidian "low" and "merely partisan" politics -- properly plays a role in constitutional decision-making. So, if the Chief Justice "changed his mind" because he came to a greater appreciation of the impact a decision striking the ACA down would have on the Court's ongoing role in American political life, that's all to the good, because it shows how "high" politics can work. Conservatives like the "changed his mind" narrative because it illustrates for them the defects of letting "low" politics -- the Democratic working the refs after the oral arguments -- affect constitutional decision-making. Randy Barnett and Ilya Somin have articulated this position particularly well. (for me, the episode suggests some difficulties with the "high versus low politics" framework: In general, high politics works through the exercise of low politics, as a reading of Pauline Meier's terrific book Ratification shows to my satisfaction.)

With the exception of Rick Garnett (and even he's a little wobbly on the matter), no one seems to credit the possibility that the Chief Justice actually thought that he was providing a better legal analysis than the alternative. Is that because liberals and conservatives have come to agree that law really doesn't matter to the Supreme Court? (I invite people to consider the Court's recent Confrontation Clause jurisprudence, which I think is best explained by the hypothesis that each Justice actually thinks that the Confrontation Clause is properly interpreted to mean what he or she says it means.)

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