Reading through today’s Harris v. Quinn decision was fun. It reminded me why I think the theater of judicial decisions is such a hilarious spectacle. Almost nobody actually forms their opinions on substantive political matters by using substance-neutral procedural considerations, but judges have to pretend to be doing that. That’s hilarious spectacle number one. Then, all of the commentators decide to play along and try to make their own substance-neutral procedural arguments and appeals in the punditry that surrounds judicial theater. That’s hilarious spectacle number two.
If you were trying to create a model that you would use to bet your money on judicial decisions, very few of the considerations that swirl around in our discourse would be included in it. Instead, the model would heavily weight any information you have about judge’s substantive political views irrespective of their proclaimed views on legal interpretation or content-neutral abstract rights like freedom of speech, religion, or association. Using the pretended substance-neutral rationales to animate your prediction model would see you bankrupted really fast.
That judges have to play along with the theater is understandable enough. It’s a long-standing tradition to decide cases like that and it is somewhat helpful to lower courts to lay out decisions like that. Additionally, maintaining the illusion of neutral adjudication is important for order. A judicial system in which decisions are a single paragraph stating political-tribal affiliations and substantive political opinions before stamping out a conclusion would lose that rule-of-law sheen that is supposed to make us respect learned judicial determinations. It would largely reach the same legal conclusions, but how judges pretend to get to the conclusions matters for legitimacy.
It’s much harder to understand why pundits do this though. I can’t decide if they just feel like that’s the game they have to play in order to argue for or against an outcome in a case, or if they have actually tricked themselves into thinking that their substance-neutral arguments motivate their preferred decision outcome. Are they being deceptive about what motivates them or are they merely delusional about it? It’s hard to say.
Political Spending
The reason the Harris case reminded me of this is because one of the issues in the case is whether requiring non-members represented by a union to pay representation fees violates free speech or association rights.
If you were trying to create a model that predicts what a given person’s opinion on that question is, you would weight their relative support or opposition of unions at nearly 100 percent. If you were writing a honest judicial opinion or punditry opinion about the issue, you would just say: “I support/oppose unions, so I think the representation fees are good/bad.” But that’s not what we get. Instead we get pundits and judges building vague castles in the sky about what free association means that also happens to generate a conclusion that miraculously aligns with whether they support or oppose unions.
Harris is about the ability to require a representation fee, but prior to Harris, the Supreme Court already outlawed, in both the public and private sector, collective bargaining agreements that require non-members to pay dues that are used for political spending. Non-members can be required to pay dues to cover representation, but not for political spending.
Right-wing opponents of unions say that this restriction is necessary for free association and free speech issues of members. That isn’t what actually motivates them obviously, but that’s the legal rhetoric you have to cite to reach your desired conclusion. So that’s what you get.
I say that obviously doesn’t motivate them because we have substantially identical association/speech issues when it comes to corporate political spending, which Citizens United has elevated to an unlimited right. In the case of corporate political spending, surely there is concern about the association/speech rights of shareholders, right? They may not agree with the corporation’s political aims, yet “their money” is going into it. Corporate legal institutions that don’t allow them to opt out of that political spending (and receive, for instance, some special political spending dividend to compensate them) are a severe assault on their abstract associational rights, right? Conservatives don’t seem to think so. It’s no mystery why.
In raising this point, I invite the distinction game, another of the great joys of judicial theater. Here the distinction game might involve saying that the difference is that shareholders can sell their shares, and so they aren’t forced to associate with the political spending of the corporation they own a share in. But then again, workers can quit their job if they don’t want to associate with the political spending of the union. That distinction doesn’t make much sense, but I am sure some great minds will come up with others that are meaty enough to allow them to hang their hat on, even though they don’t actually motivate their divergent views on the associational concerns of corporate and union political spending.
Conclusion
Punditry and judging will probably continue as it has for a long time on this stuff, even though it’s largely vacuous and deceptive. I wish it’d change though. Covering the Supreme Court for what it is and arguing honestly about why you want it to reach certain decisions doesn’t require some kind of deeply troubling cynicism. The Supreme Court in a good number of cases is simply a lagging, appointed legislative body that acts out its own substantive political views, not totally unlike the House of Lords. Why not just be candid about that instead of playing along as if any of these arguments mean anything to anybody?