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The Inevitability of Strategic Voting at the Supreme Court

[ 59 ] July 10, 2012 |

One interesting thing to me about the thread on the Kagan/Breyer Medicaid vote is the number of commenters who seem to think that strategic voting by Supreme Court justices is inherently problematic. Pithlord expresses this sentiment in its most extreme form:

Scott, this post strikes me as really cynical. If Breyer and Kagan don’t believe that there are any justiciable limits on the federal spending power, they should have joined Ginsburg. Your “defence” here would be that they did something totally unethical and probably illegal.

This is one of those times when I think assertions that something might be illegal should be accompanied by a cite to what statute is being violated. I must confess that I am unaware of the existence of a law requiring appellate court judges to only sign opinions they sincerely agree with in every detail.

While I think few people would take the argument to this (frankly ridiculous) extreme, there does seem to be a broader sentiment that strategic voting by Supreme Court justices should make us squeamish, and there’s something suspicious about justices joining opinions that may not reflect their sincere preferences in all respects. I don’t understand this argument at all. Certainly, this doesn’t reflect the actual practices of the Supreme Court, where strategic behavior is banal — as Epstein and Knght showed, more than half of cases involve changed conference votes or majority opinions changed to reflect the comments of others in the coalition (and this doesn’t count justices who preemptively accommodate the least-persuaded members of their coalition when writing opinions.) There’s nothing unusual or unethical about strategic voting; it’s the inevitable byproduct of norms that encourage majority opinions and require actual majorities for precedents to be created. John Marshall is widely considered the greatest Chief Justice although he routinely engaged in strategic behavior (including the use of some practices, such as the willful distortion of statutes, that we would find problematic today.) The idea that strategic voting is somehow unethical is a norm in the Aaron Sorkin sense — i.e. it describes an way of doing things that never existed and doesn’t make sense on its own terms when you think about it.

Let’s consider the example that Epstein and Knight start with, Craig v. Boren. We know from the conference votes that Brennan and Marsall’s sincere preference was that gender be treated as a “strict scrutiny” category, like race. And we know from the published opinion that Brennan wrote and Marshall joined an opinion applying heightened — but not strict — scrutiny. They did this because an opinion declaring gender a strict scrutiny category would not have attracted a precedent-creating majority, and gender classifications would still be governed by rational basis review. Making gender subject to heightened but not strict scrutiny, conversely, was able to attract a majority (including Powell, who had initially voted to retain a rational basis standard for gender.) If I understand the position of some commenters, what Brennan and Marshall did was wrong — the important thing was that they be on the right side of history, and they should have written what they thought and if some lawsuits in lower courts failed because rational basis scrutiny was still being applied, so be it. I’m baffled by this position, and am glad that Brennan and Marshall didn’t think this way. There’s no reason to expect that majority opinions reflect the sincere preferences of every member in every respect , and there’s nothing unethical (let alone illegal) about strategic voting.

One final point on whether Kagan and Breyer’s strategic voting actually had significant costs. On this, Tushnet is correct:

It’s worth noting as well that, as a post on Daily Kos pointed out, the Affordable Care Act has a large number of provisions altering Medicaid, other than the expansion of coverage to those up to 133% of the poverty line. Under the Chief Justice’s analysis, it remain open to the Secretary of HHS to take the position that some (many, all?) of those provisions are simply modifications within the existing Medicaid framework, not the substitution of a new program for the older one, and that states therefore must comply with them or risk a cutoff of existing Medicaid funds.

Arguments that Kagan and Breyer gave away something important have the same problems as arguments that NFIB was really a big win for conservatives. Kagan and Breyer would easily be able to distinguish any future case (particularly since future Congresses will react to this decision and attach conditions to new rather than existing spending) even if a clear rule had been established.  And in this case, the rule established has almost no content anyway. Perhaps a holding that the Medicaid expansion was entirely unconstitutional would have created future mischief (as well as having very bad immediate substantive consequences), but if you believe that this is all the more reason for Kagan and Breyer to act to ensure that Roberts wouldn’t create a majority for such a holding.

Comments (59)

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  1. andrewsomething says:

    If there wasn’t strategic voting, we’d see nine separate opinions on nearly every case. These are people that most likely believe (and society has more or less reinforced the belief by putting them one the court) that they are the brightest legal minds in the country. True or (more likely) not, I’m sure they’d all love to show us their individual nuanced approach…

    • Scott Lemieux says:

      And even seriatim opinions wouldn’t eliminate strategic writing. Lower courts would be trying to discern majority coalitions after the fact, and the more idiosyncratic your opinion the less influential it would be.

      • DrDick says:

        I would agree with your premise here. I do not see anyway to avoid systematic strategic voting in any democratic institution. You are always going to face situations where you need to compromise to advance your larger agenda. The notion that absolutely refusing to compromise will result in a better outcome is ludicrous on the face of it.

    • L2P says:

      That’s just not true, historically or now. All the justices have enough of their own opinions to write that they don’t need to worry about being overshadowed on each individual decision of the Court. When they actually care, they can right pithy concurrences; you see a lot of short concurrences.

      And that’s not really the issue. When people complain of strategic voting, they are complaining about justices joining or writing opinions that they believe, fundamentally, are wrong. It’s one thing to concur in an opinion providing heightened scrutiny to gender when the justice believes it should have strict scrutiny. Either way, the justice believes that rational basis shouldn’t be the standard, and the concurrence will apply whatever reasoning should be sound. It’s another thing altogether to concur in that opinion and also concur that, say, as certain gender discrimination claims are barred for lack of subject matter jurisdiction when the justice truly believes otherwise, in order to get a vote for the main principle.

      That’s troubling. I don’t care about the “ethics” of it (there aren’t any ethical standards for Supreme Court justices). I don’t care about the “politicalness” of the process somehow warping the Search for Truth and Justice.

      No, it’s the lack of guidance. How will the Court actually rule on those issues if they come up separately? Are there really 5 votes for either ruling? If Kennedy votes to uphold a limit on abortion because Roberts agreed to join an opinion that limited it to its facts and applied some weird 7-factor test that only Kennedy likes, how the hell do you know what the Court really thinks? At least if you have a fractured opinion, you know where the justices stand.

      • Scott Lemieux says:

        Strategic voting makes opinions that give meaningful guidance more likely, not less likely.

        • L2P says:

          Can you explain that more? If the justice’s don’t actually write what they think the law is, how do you know what the Justices really think? And if you don’t know what the Justices really think, how do you have any meaningful guidance?

          Here, for example. I’ve got no idea if there are 7 votes for the proposition that there are limits on the obligations the government can impose on the Federal spending power. But I doubt Kagan and Breyer really agree with that proposition. So is this all changing if Scalia gets replaced in a year? I don’t know. I have an opinion I have to rely on, because it’s Supreme Court precedent, but also one that I can’t rely on b/c I don’t know what the justices really think.

          How are we better guided by this? This is the whole reason the Court issues concurring opinions, so we know where the Justices don’t agree.

      • Furious Jorge says:

        how the hell do you know what the Court really thinks?

        While that’s certainly a fascinating line of inquiry for historians, I don’t really see how “what the Court really thinks” matters to policy in the here and now, as long as we have a decision one way or the other.

        Upheld. Struck down. Constitutional or not. Whichever. What matters is what the Court decided, and not what they think.

        • L2P says:

          Are you serious?

          OK. You’re advising a city that just got $1 billion in Federal grants to build a subway system. It’s conditioned on using union labor and paying the local median wage.

          Is that constitutional? Right now, you can challenge it. There are at least 5 votes for the proposition that “some” limits are too onerous to encumber Federal grants. There’s a lot of negotiating room and if the city doesn’t like the terms, they can now sue.

          What if any of the 5 conservative members are replaced by a liberal? Well, now I don’t know what the answer is.

          I don’t know that I’d call that “historical” interest.

          • Greg says:

            Yes, it’s constitutional. The feds can attach strings to project the grant is funding, and the state has the choice to either take the money and do the project the feds’ way or do it on their own and don’t take the money. What they can’t do is take away other grants if they the state doesn’t want to accept this particular grant.

            • L2P says:

              Why are you so sure? What would Roberts say if confronted ONLY with that question? How do you know there aren’t 5 votes for the opposite conclusion?

              As counsel, you have two choices. Say what you just said, and start revising your resume for when entire grant proposals are suddenly held unconstitutional despite your advice. Or instead advise that the entire area of obligated grants is in doubt to avoid looking like an idiot if things head south.

              I can tell you what advice most attorneys are giving, and it’s not at all what you seem to think it is. But hey, like Paul says there’s lots of other legal jobs out there when you get fired from this one, right?

  2. Murc says:

    As I said in the previous thread… if log-rolling on the Supreme Court is going to be the accepted norm, why even bother with the pretense that its a court of law? That makes it more of a supervisory body. Dispense with the case-hearing and just have them issue dicta as to what the Constitution means under the current makeup. Hell, we’d save an awful lot of time if we just had them pre-clear legislation.

    • Davis X. Machina says:

      Hell, we’d save an awful lot of time if we just had them pre-clear legislation.

      State supreme courts frequently perform that function, and it’s a norm, not a law, that keeps the federal high court from providing the same service.

    • joe from Lowell says:

      Because the world is complicated, and the inclusion of a degree of log-rolling does not, through some sort of one-drop rule, turn the entirety of what the Supreme Court does into log-rolling.

      • Murc says:

        Yeah, but… I mean, isn’t the pretense supposed to be that they’re judges on a court, not politicians making policy?

        A certain amount of compromise is to be expected, but where is the line drawn? The ACA shenanigans don’t seem to cross a line for me where I’m gonna get outraged, but they do seem more dubious to me than Scotts “we have a solid majority for some sort of scrutiny, right? Okay. Let’s hammer out what SORT of scrutiny” example.

        Or maybe dubious isn’t the word. Certainly that word is more pejorative than what I’m going for. It’s just… well, I feel a policy-making body should be bound by different standards of conduct than an adjudicating body. If the Court is gonna be making policy, it should be treated like a place where policy is made and organized along those lines.

        • joe from Lowell says:

          isn’t the pretense supposed to be that they’re judges on a court, not politicians making policy?

          This seems like a different question. I can imagine a scrupulously principled holding that makes policy, and a bit of sausage making that is very restrained, just as I can imagine sausage-making policy-setting and principled restraint.

          It’s just… well, I feel a policy-making body should be bound by different standards of conduct than an adjudicating body. If the Court is gonna be making policy, it should be treated like a place where policy is made and organized along those lines.

          But it is. The Court incorporates procedures and norms, like respect for stare decisis for instance, to a much greater extent than do the “political branches.” It’s not absolute, but the policy/balls-and-strikes distinction isn’t absolute, either.

          • Murc says:

            The Court incorporates procedures and norms, like respect for stare decisis for instance, to a much greater extent than do the “political branches.”

            This is true, but a lot of those procedures and norms seem to rest on the fundamental notion that the Court is not, in fact, a place where politics happen. Even if the norm is one that allows politics to happen, it does so in a backdoor way.

            And that just seems counterproductive and fundamentally unhealthy.

    • Scott Lemieux says:

      If you’re disillusioned that high appellate courts are doing more than addressing purely technical legal questions in a wholly apolitical sense, it might be time for us to have a talk about the Easter Bunny.

      • Murc says:

        It’s not so much that I’m disillusioned as that the doublethink kind of pisses me off.

        If high appellate courts are going to function that way, we should organize the system to reflect that and construct helpful norms around it.

        As it stands, right now the judicial branch of government at the higher levels seems to want to have it both ways; they want to be treated as high-minded jurists who addressing technical legal questions using rubrics they apply as consistently as possible in an apolitical fashion. Hell, elected judges are actually forbidden from talking about how they’d rule. But they also want to shape policy.

        • DivGuy says:

          Well, sure, there’s significant amounts of hypocrisy judicial self-presentation.

          That doesn’t make it any more reasonable to suggest that the Supreme Court is, could, or should be a wholly non-political body in which compromises and strategic decision-making doesn’t happen. It was never reasonable to suggest that, and it still isn’t.

    • djw says:

      if log-rolling on the Supreme Court is going to be the accepted norm

      What Scott describes here isn’t logrolling. Where’s the quid pro quo in his account of Craig v Boren? The account of strategic voting on the part of Kagan and Breyer comes closer, but it’s still not logrolling. It’s not like they now have a chip they can cash in when they need it with Roberts.

      we’d save an awful lot of time if we just had them pre-clear legislation.

      Save time? Huh? Such a change would drastically increase the power of the court in American Politics. Why that change would be associated with losing our religion about the singular truthiness of The Law I have no idea.

      The Constitution in an intentionally vague compromise document with multiple plausible interpretations. That some particularly egregious civics textbooks and and a few dimwitted pundits and idealistic law professors pretend otherwise is the sort of thing we should probably ignore.

      • joe from Lowell says:

        The Constitution in an intentionally vague compromise document with multiple plausible interpretations. That some particularly egregious civics textbooks and and a few dimwitted pundits and idealistic law professors pretend other wise is the sort of thing we should probably ignore.

        Amen!

        These people who go on about the drafters’ “original intent” – their “original intent” was to settle on some language that could get a supermajority of delegates to approve it, even if it meant using language so vague that it could be interpreted in more than one way.

        • Scott Lemieux says:

          Right. Among other things, “originalist” arguments seem to imply that Alexander Hamilton and Thomas Jefferson agreed about the scope of federal power under the Constitution.

          • rea says:

            Originalists also faile to come to grips with the fact that the Founders were a bunch of pragmatists, and that people like Madison and Jefferson therefore changed their views about the Constitution as they came to see what did or did not work. Jefferson and Madison started out talking about the narrow scope of the spending clause, but did not hesitate to change their views when Napoleon offered them a good deal on Louisiana . . .

        • rea says:

          The ironic flaw in “original intent” jurisprudence is that the Founders didn’t intend it.

      • Davis X. Machina says:

        Save time? Huh? Such a change would drastically increase the power of the court in American Politics.

        Four of the six New England states have state supreme courts that can issue advisory opinions. It’s hard to see a qualitative difference in the regimes there and the two nearby states that don’t.

      • Murc says:

        Save time? Huh? Such a change would drastically increase the power of the court in American Politics.

        Eh?

        The way it is now, if Congress is going to pass a controversial law, not only do we have to go through all the foofawraw of passing it (which can take literally decades) we then have to wait for the challenges to wind their way through the lower courts and get to the Supreme Court to find out which way the controversy is gonna be settled.

        Why not cut out the middleman and just have them decide at the beginning? As mentioned above, that seems to work great for state courts. “Hey guys, this is my law. What do you think?”

        I’m not sure how it’d increase their power. Anything they kick back to Congress would be something they’d invalidate anyway, yes?

        • djw says:

          The way it is now, if Congress is going to pass a controversial law, not only do we have to go through all the foofawraw of passing it (which can take literally decades) we then have to wait for the challenges to wind their way through the lower courts and get to the Supreme Court to find out which way the controversy is gonna be settled.

          Why not cut out the middleman and just have them decide at the beginning? As mentioned above, that seems to work great for state courts. “Hey guys, this is my law. What do you think?”

          I’m not sure how it’d increase their power. Anything they kick back to Congress would be something they’d invalidate anyway, yes?

          1. Allowing laws to become enacted (and stakeholders to gain their benefits, various actors to adapt to them, etc etc) raises the stakes of striking down laws considerably. This is probably why, historically, the Supreme Court is fairly reluctant to strike down major federal legislation. Overturning major federal legislation should be high stakes, and it is. Your proposal lowers them.

          2. This would increase the access of the courts to the laws. The SCOTUS currently doesn’t have access to any law they want. Your final question forgets this part of the structure.

          3. Some laws’ constitutionality is determined not by the letter of the law but by the consequences of it, once it has been put into force.

          I’m not saying your model of judicial review is wildly impractical; some countries have that sort of model (India, Hungary) and it hasn’t been a disaster. But let’s not pretend it wouldn’t increase the power of the court. And to suggest such a radical revision of the existing order as a reaction to decision making not perfectly matching a particular ideal type of ‘adjudication’ continues to strike me as odd.

    • rea says:

      It used to be that the accepted epistemological stance was that law reflected something objective–the famous “brooding omnipresence in the sky”–ulltimately, the word of god, or something very like it. If you have that point of view, then any decision on a legal issue can only be right or wrong, and strategic voting is a moral failure.

      It’s been a long time since most lawyers thought that way–hell, even an opus dei conservative like Scalia doesn’t seem to think that way.

      If you think law is a social construct and not the revealed word of god, if you think legal questions can be complex, with no clear right and wrong answer, then strategic voting becomes acceptable, in the right context.

  3. NonyNony says:

    a norm in the Aaron Sorkin sense

    Consider this stolen.

    I’m gonna add it to my file where I keep “ironic in the Alanis Morrisette sense”.

    • Boudleaux says:

      You mean, where “ironic” means “sucks?” But see: ironic means “cool.” [Butthead, circa 1995].

      • Furious Jorge says:

        I’m pretty sure he meant “where ‘ironic’ means ‘completely devoid of even a shred of actual irony.’”

        • NonyNony says:

          It’s kinda both. Alanis’s examples of irony are in fact completely devoid of actual irony. But they are examples of where something happens that sucks when you’re expecting something good to happen.

          But I meant it as “ironic in the sense of not ironic at all”. Much like Scott’s example of Sorkin’s “a norm in the sense of not a norm at all”.

        • Greg says:

          Maybe Alanis Morrissette is thinking at a higher level than all of us and the irony is that none of her examples of irony are in fact ironic.

          Or maybe she’s a descriptivist.

  4. Robert Halford says:

    Strategic voting is inevitable. But what is the evidence that Breyer and Kagan’s votes here were strategic? It depends on an assumption that their votes were necessary to bring along Roberts on the taxing power question, and AFAICT despite all the leaks there is no evidence of this. Also, Breyer seemed into the idea of a spending power limit at oral argument, and they both no only voted but wrote a concurring opinion. I think in this particular case the most parsimonious explanation is that Breyer and Kagan sincerely do believe in limiting the spending power.

    • Robert Halford says:

      Further, the purported trade doesn’t really make sense. Why would Roberts switch sides on one of the 2-3 biggest cases in his career to get two extra votes on a much less important spending clause holding?

    • NonyNony says:

      It depends on an assumption that their votes were necessary to bring along Roberts on the taxing power question

      No, I don’t think that’s right. Taking this quote from Scott’s article at the Prospect:

      Permitting withholding on only new Medicaid money is a bad outcome compared with the original legislative framework, but it will still allow the Medicaid expansion to proceed in a majority of states, and ultimately—despite short-term resistance—all states are likely to accept the federal money. Had Roberts joined the four dissenters in holding the Medicaid expansion entirely unconstitutional, on the other hand, there would have been no expansion of Medicaid anywhere.

      The argument seems to be that Kagan and Breyer joined Roberts to give Roberts the ability to declare just that slice unconstitutional. Had Kagan and Breyer not been willing to join in, the idea is that Roberts would have gone with the other conservatives and created a majority to strike down the entire expansion rather than writing a lone single-person dissent that just struck down the part where the states were required to take the money.

      I may be misunderstanding this entirely, but that’s how I’ve been reading this. And if that is actually correct then I can see why it would need to be two of them to make Roberts comfortable enough to sign off on it, and why falling on their swords to protect the expansion as a whole at the expense of this bit of Congressional power would be seen as worth it.

      That said – I am also uncertain why it’s not reasonable to believe that Breyer and or Kagan don’t believe in this idea on its merits. Is it really out of character for Breyer to say “you can’t force a state to do this by threatening funding, you have to bribe them to get them to take it”? I haven’t seen anyone back that up with actual arguments beyond “well Clinton appointed him so how could he possibly believe something like that”, so I don’t know.

      • Robert Halford says:

        But I still don’t understand the argument that Breyer and Kagan’s spending clause concurrence was necessary to hold Roberts on even that issue. If Roberts had wanted to, he could have easily joined the four dissenters and created a five vote majority for striking the expansion. Why would a concurrence from Kagan and Breyer sway him on even this narrow point? I’m sure Roberts was happy to have it, but I don’t see the argument that the Kagan/Breyer concurrence was necessary to any substantive result. It’s not impossible, but we have no actual evidence of strategic voting (again, despite links) and I don’t think that gaming out the strategy supports the idea that Kagan and Breyer were acting strategically. The simpler explanation is that they meant what they said.

      • L2P says:

        Besides the fact that the distinction is unworkable?

  5. Robert Halford says:

    Also, it’s not true that they gave away *nothing*. A liberal majority reversing or dramatically limiting the spending clause holding is a very real possibility after November, and that would be easier to accomplish if Kagan and Breyer weren’t publically committed to limiting the spending power.

    • Scott Lemieux says:

      and that would be easier to accomplish if Kagan and Breyer weren’t publically committed to limiting the spending power.

      No, it won’t. I think your prediction is wrong, but anyway there’s nothing that a future court could do with this (virtually content-free) standard that they couldn’t do anyway. This hyperformalist conception of precedent doesn’t describe how the Supreme Court works either in theory or practice. And what if Roberts had just joined the conservatives and struck the entire Medicaid expansion?

      • Robert Halford says:

        It’s not a hyperformalist conception of precedent, it’s that judges are less likely to overturn views that they themselves have expressed by written opinion. It’s one thing to overturn precedent in the abstract, it’s another thing to directly contradict yourself, and that is something that justices pay close attention to — which isn’t to say it never happens. So now you hav a seven vote majority for a somewhat restrictive reading of the spending clause, which is quite different than a five vote majority with a roughly 50% chance of a new liberal justice after 2012.

  6. David Kaib says:

    While I agree with the thrust of this post, I’m not convinced that Epstein and Knight’s numbers are helpful here. Neither a changed vote or opinion is necessarily strategic.

  7. tonycpsu says:

    Scott, I’m glad you expanded on your premise here, but I think your Craig v. Boren analogy only works if we’re entirely clear that Kagan and Breyer got something tangible for joining Roberts on Medicaid.

    You asked in the last thread “What do your chances of succeeding have to be for giving up nothing to be worth it?”, and that implies that being on the right side of history is literally worth nothing. I think most people would agree that it isn’t worth as much as a substantive victory (upholding the individual mandate) or at least two yards and a cloud of dust (as in Craig v. Boren) but I think it’s incumbent upon people who are defending this to state what they think the liberals who joined Roberts got for switching. If you literally think being on the right side of history has no measurable value, would you feel that way about any 5-4 decision that liberals decided to run up the score on? If it’s literally worth nothing, then should they be free to just join the conservatives on anything they feel like just to see if they get something in return?

    • Scott Lemieux says:

      we’re entirely clear

      I have no idea why this is a necessary condition. Breyer and Kagan had no way of knowing what would be necessary to keep Roberts from joining part or all of the majority dissent. If it made Roberts at all more likely it was worth it, because what they gave up is “nothing” (and being able to congratulate yourself for being on the “right side of history” by casting votes that don’t mean anything is worth less than nothing.)

      would you feel that way about any 5-4 decision that liberals decided to run up the score on?

      We had this discussion with respect to your faulty Bush v. Gore analogy. Obviously, if the other side doesn’t compromise you might as well just vote your sincere preferences on the merits, even if your vote has no effect on the ground either way (which it doesn’t.)

      • tonycpsu says:

        So you concede that there’s some value in voting for what you believe in if you don’t get a compromise, but you also say there’s no value (or “less than zero” value) in voting for what you believe in if you might get a compromise. How do we solve this equation for “the minimum probability of a compromise in order to justify selling out?” It almost sounds like if there’s any longshot possibility, you must sell out, since your extra vote for your conscience is worth nothing. Especially with a wildcard like Kennedy in the mix, shouldn’t the liberals be engaging in gambits like this routinely?

  8. BKN in Canadia says:

    Scott: to me, the simplest explanation of the different between you and Pithlord on this question is that Pithlord is (IIRC) a lawyer with a background in moral philosophy, and you’re a political scientist. (As a dabbler in all three of these fields, I pass no judgment as to their relative merits).

    • rea says:

      Pithlord is a lawyer? Really? Because the notion that appellate judges do something unethical or illegal when they engage in strategic voting is really strange, coming from a lawyer.

  9. Sly says:

    The idea that strategic voting is somehow unethical is a norm in the Aaron Sorkin sense — i.e. it describes an way of doing things that never existed and doesn’t make sense on its own terms when you think about it.

    You mean that Supreme Court deliberations aren’t discussions wherein each Justice issues a purely high-minded defense/attack of the law in question, accompanied by some cheesy violin music in a ham-handed attempt at cultivating an emotional response from the audience?

    I feel violated.

    • rea says:

      I don’t know anything about the inside workings of the US Supreme Court’s post-argument conference, but at the intermediate appellate court where I worked long ago, they went somethinbg like this:

      PJ: Okay, No. 1 on the docket.

      J2: Affirm.

      J3: Affirm.

      PJ: Okay, that’s three to affirm. Docket No. 2? . . .

  10. Joe says:

    Good discussion in answer to some, with respect, Polyanna-ish idea of how things work. Basic misunderstandings on how things work makes it impressive the republican system works as well as it actually does.

  11. bob mcmanus says:

    If I cared, and were to attempt to make an argument about log-rolling, I would probably use the Oath of Office and “administer justice.”

    I would also change to a hypothetical case of exchanging a Robert’s vote to uphold ACA for say a Kagan vote on a death penalty case she sincerely felt was an unjust or wrongful execution.

    Most here probably believe more than one life will be saved by ACA.

    • bob mcmanus says:

      But then since the Medicaid compromise looks like it actually will cause people to die in Red States perhaps I don’t need to go so far.

      But I suppose Kagan can blame Perry. It wasn’t her decision to pull from the expansion.

      • Scott Lemieux says:

        You seem to be under the mistaken impression that Kagan/Breyer were swing votes. Kagan certainly didn’t cause this, since there were 5 votes for it anyway. She may, however, have permitted the Medicaid expansion to go forward in states not being governed by neoconfederate cranks.

  12. [...] to strategically join the majority on limiting Congressional spending power, Scott Lemieux is quite reasonable that such strategic voting is inevitable and even (marginal) desirable.  The Court is a political [...]

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