Law & Society Blog

I am reading Gonzales v. Oregon today, like everyone else, and I am reading what people have to say about the decision. I came across a post by Robert Tsai on Concurring Opinions, in which Tsai is counting justices:

But I have to think that Oregon is very, very lucky regarding the timing of the case.

Justice O’Connor was still on the Court–her “last hurrah” so to speak. We won’t know for certain until someone decides to talk, but Kennedy was clearly wavering at oral argument (worrying about the possible consequences of each outcome) while O’Connor seemed a safe vote for Oregon given her aggressive questioning of the U.S. (esp. in suggesting that the regulation of medicine is a “traditional state power”). Joining the majority allowed Kennedy to vindicate state’s rights and individual autonomy in one fell swoop, and to have the most influence on an exceedingly important opinion. The 6-3 outcome may mask complicated positions, and I have to believe that Justice Alito would have inclined toward the Government’s position and perhaps moved Kennedy in that direction.

I know that everyone loves gossip and it’s fashionable to predict which justice will rule what way, but is this really the important stuff to consider about Supreme Court decisions? What does this say about the state of our legal debate? Here is a law professor analysing the entire opinion, not in terms of the Constitution, the CSA, or doctrine, but in terms of the foibles of the justices: “An interesting question is why Oregon lost Justice Thomas, who is moved to write separately,” writes Tsai. Is that really an interesting question to the participants in legal discourse? To whom would this matter except a lobbyist? What happened to the actual legal reasoning employed by the justices? Doesn’t the counting-justices approach mean that legal reasons don’t matter and can’t matter?

I am, of course, aware of the realist roots of this approach to jurisprudence. But counting justices instead of criticising arguments is much more radical than the realists were. Oliphant, if I can take him as a representative of the sociological wing of realism, would be the first to insist that rules are meant to guide the decisions of judges, and that they can guide decisions. He called for a “return to stare decisis” and not the wholesale abandoment of legal discourse for political discourse. (The problem Oliphant perceived was that existing legal rules were too general to address the fact-specific inquiries that lead courts to rule the way they do.)

I don’t mean to single Tsai out. My larger point is the danger of abandoning legal discourse for political considerations that may or may not be meaningful. If we imagine all nine justices in a car, taking turns driving, should we be looking at who is driving, or should we observe the extent to which the car is following traffic rules?

License

This work is published under a Creative Commons Attribution-Noncommercial 2.5 License.