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.