Judicial candor and extralegal reasoning: why extralegal reasons require legal justifications (and no more).

• Author: Hageman, Eric Dean

INTRODUCTION

Chief Justice John Roberts's opinion in National Federation of Independent Business v. Sebelius (1) and his vote to uphold the Affordable Care Act's individual mandate (2) generated much criticism. Some accounts suggest that Chief Justice Roberts voted as he did out of concern for his and the Court's legacies, regardless of the governing law. (3) These accounts impute extralegal motives on Chief Justice Roberts, sometimes as indictment (4) and sometimes as praise. (5) Either way, NFIB revived two important questions: When, if ever, may a judge decide a case based on extralegal considerations? And if he does, must he disclose his extralegal considerations in his written opinion?

This Note is concerned with the second question. It resolves that question by arguing that when a judge makes a decision based on an extralegal factor, she should omit discussion of her reliance on that factor and justify her decision with legal reasoning.

This Note is thus concerned with the Chief Justice's decision not to disclose any extralegal reasons in NFIB. It assumes that he voted as he did for extralegal reasons, namely, to preserve the Court's legitimacy. Of course, it is plausible--maybe more plausible than not--that Chief Justice Roberts believes that the individual mandate is a constitutional exercise of Congress's taxing power. (6) Or, Chief Justice Roberts's decision may have been a product of judicial restraint, permitted or required by law--an act of wisdom in the face of the other two federal branches' foolishness. (7) The sole questions with which this Note is concerned are whether the Chief Justice was right to omit from his opinion any discussion of those legitimacy concerns and to justify his decision with legal reasoning.

This Note will say little about what precisely constitutes extralegal reasoning, as opposed to legal reasoning. The question of the legitimacy of judicial reasoning is well-explored. (8) Some would argue that the preservation of the judiciary's legitimacy is a legal consideration. Others would argue that moral considerations are legal justifications for outcomes or that the law can be altered to accommodate a judge's conceptions of morality. This Note leaves it to the reader and the jurist to draw that line.

Relatedly, this Note will take a subjective view of judicial candor. The assertion that an actor should disclose what he believes the reasons for his actions were is a subjective prescription for candor, where the assertion that he should disclose what the reasons actually were is an objective one. In a similar context, Professor Idleman has noted that the subjective view simplifies discussions on candor and is likely the view readers already have in mind. (9)

This Note's first Part explores two landmark Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey (10) and NFIB, that may have been decided based on extralegal considerations. Part II describes three prominent theories of judicial candor with an eye to the results they might yield with respect to extralegal reasoning. Part III offers and defends a new, partial theory of judicial candor. This theory is that a judge who employs extralegal reasoning should omit discussion of her reliance on that reasoning and justify her decision with legal reasoning.

The first two Parts will demonstrate that there is a strong presumption for judicial disclosure and an even stronger one against insincerity. This Note accepts those presumptions, but only where the reasoning in question is legal. Thus, a judge should omit discussion of his reliance on extralegal considerations because: (a) the alternative asks too much of the judge; (b) disclosing extralegal reasoning risks leading other judges to believe that engaging in extralegal reasoning is normal and proper; (c) such disclosure is defiant and disrespectful to litigants and to the public; (d) disclosing extralegal reasoning risks legalizing that reasoning; and (e) such disclosure harms the judiciary's legitimacy. Instead of disclosing his reliance on extralegal reasoning, the judge should justify his decisions with legal reasoning. This Note also discusses and defends against the criticisms that by omitting and justifying extralegal reasons, judges violate their own moral duties, the rights of litigants, and the rights of the public as a whole.

As the above discussion regarding NFIB demonstrates, this Note operates under several assumptions about judicial decisionmaking processes surrounding important, controversial cases, without attempting to empirically prove those assumptions' truth or validity. In particular, the cases this Note discusses in Part I appear throughout the whole Note in gratuitously stylized forms. This Note will make its assumptions clear, but its applicability to those particular cases is limited. The cases are nothing more than familiar occasions on which to discuss abstract ideas.

1. THE SUPREME COURT'S JUSTIFICATION OF EXTRALEGAL REASONING

   This Part considers two Supreme Court cases that present opposite methods of justifying extralegal reasoning. Planned Parenthood of Southeastern Pennsylvania v. Casey discloses a line of reasoning many consider extralegal. In contrast, NFIB v. Sebelius does not disclose such reasoning. For the reasons discussed in Part III, this Note prefers NFIB's nondisclosure.

   The extralegal motives these cases may represent are essentially attempts to preserve the Supreme Court's institutional legitimacy. However, the problem of judicial candor is relevant elsewhere. Arguments about judicial can dor are important to the question when to issue concurring opinions (11) and to the scope of stare decisis. (12)

   This Note assumes that Casey and NFIB were decided to preserve the Court's legitimacy and that legitimacy concerns are extralegal. The reader is asked to bracket concerns over these assumptions, as proving or disproving either would be tangential.

   1. Disclosure

      In Casey, the Supreme Court revealed a rationale some may consider extralegal. The history of Casey is well-known. Almost twenty years after Roe v. Wade, (13) and a year after President George H.W. Bush replaced two Democrat-appointed Justices, (14) the Court faced the question whether to preserve the constitutional right to an abortion and reaffirm Roe's trimester framework. It chose to do so in part. (15)

      The Casey Court disclosed that its decision was motivated by a desire to preserve its own legitimacy. The breakdown of written opinions was complicated; all in all, five Justices voted to reaffirm parts of Roe on the basis of stare decisis. (16) Joined by two concurring Justices, the plurality wrote that " [t] he Court's power lies ... in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands." (17) The plurality continued,

      The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. (18) It then discussed two instances in which it would come under especially heavy scrutiny for overruling cases: excessively frequent overruling and overruling cases that have resolved divisive controversies. (19) The plurality found itself in an instance of the second type and famously asserted that "to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question." (20) It concluded that it was thus important to adhere to Roe. (21) Regardless of whether it was proper to express such a strong concern with its own legitimacy, the plurality invoked a principle that some would consider outside the law's boundaries. (22) It did so clearly, candidly, and over strong objection.

      In an impassioned dissent, Justice Scalia asserted that "to portray Roe as the statesmanlike 'settlement' of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian." (23) He continued,

      I cannot agree with, indeed I am appalled by, the Court's suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced ... by the substantial and continuing public opposition the decision has generated.... In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford.... ... [W]hether it would "subvert the Court's legitimacy" or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. (24) While the plurality felt obligated to engage the question of legitimacy, Justice Scalia found its adherence to legitimacy concerns "of almost czarist arrogance." (25) Part III of this Note will suggest that if Justice Scalia was right, it was just as arrogant for the plurality to disclose an extralegal rationale.

   2. Nondisclosure

      The alternative to Casey is nondisclosure of extralegal reasoning. It is much harder to prove and discuss nondisclosure. This Note's Introduction discussed the speculation that surrounded Chief Justice Roberts's vote in NFIB, and this Section will not reiterate. To illustrate an instance of nondisclosure, let us assume that Chief Justice Roberts's vote to uphold the Affordable Care Act's individual mandate was motivated by extralegal factors.

2. THEORIES OF CANDOR AND SINCERITY

   This Part will discuss existing theories of judicial candor advanced by Professors David...