Wednesday, July 11, 2012

Persuasion v. Coercion and Manipulation

In my Verdict column for this week, I discuss Chief Justice Roberts's apparent change of heart on the constitutionality of the Affordable Care Act (ACA) individual mandate.  Some have suggested that the Chief Justice changed his vote in response to worries about public disillusionment if he and the four other Republican appointees on the Court invalidated the individual mandate.  In the column, I assume arguendo that Chief Justice Roberts did take public opinion into account in his decision, and I analyze whether doing so  would necessarily have been improper.

In this post, I want to focus on the behavior of the other four Republican appointees in response to the Chief Justice's ultimate decision.  As we can observe in the four Justices' opinions, the four other Republican appointees on the Court gave Chief Justice Roberts the silent treatment -- they failed to join any part of his opinion, even portions that adopted their own view that, for example, the Commerce Clause did not grant Congress the power to pass the individual mandate.  Rather than join his opinion in part, however, the four Republican appointees instead took the unusual step of issuing a joint dissent (without one author taking credit for the opinion), thereby symbolically merging their identities and leaving Chief Justice Roberts out in the cold.

At one level, the evident conduct of the Chief Justice's fellow Republican appointees is very immature and suggests that the Supreme Court functions in a manner that better resembles the interactions of a dysfunctional family than those of the people who head the judicial branch of the United States government.  At another -- not entirely unrelated -- level, the dissenting Justices' behavior appears to reflect manipulation and coercion rather than  the process of persuasion by which many of us imagine or hope that judges reach the decisions at which they arrive.

Consider the difference between persuasion and manipulation.  Say I am thinking about moving to a different city, and my friend John Doe does not want me to move, because he and I are friends, and he will miss my company.  John Doe could attempt to convince me to stay where I am in a number of ways, on two of which I shall focus here.  First, John could point out the many benefits of living where I currently live and the great opportunities that I have here.  Second, he could instead tell me that if I decide to move, then he will interpret my decision as a rejection of his friendship and will no longer be my friend.   In both cases, John is attempting to influence my decision whether to remain where I am or to move somewhere else.  In the one case, however, he is addressing me in an autonomy-enhancing manner -- he respects my freedom by offering me information that might alter my own view of the merits.  In the other case, by contrast, John is challenging my autonomy by threatening to disavow our friendship if I decide that the best decision for me is to move.  He is, in other words, threatening me with the cold shoulder as a price for deciding that the best choice for me would be to leave.

The two modes of persuasion are more than simply distinct strategies for achieving the same result.  The first affirms our relationship and implicitly supports the legitimacy of my freely making the best decision for me, while the second uses our relationship instrumentally, to manipulate me into selecting the outcome that he prefers.  The result of this behavior is to diminish my connection with John Doe, such that if I were to stay in place, I would no longer treasure his friendship and would, in fact, be inclined to avoid him.  It is when relationships have completely broken down -- when one party is taking little-to-no account of the other party's needs -- that threats become the means of persuasion.

We can observe the analogous threats in the ACA case in the four dissenters' effectively shunning Chief Justice Roberts for departing from the party line in his vote on the ACA individual mandate.  Doing so suggests a relationship between some of the Justices that is far shallower and far more instrumental than I would have supposed.  To punish Chief Justice Roberts (and thereby implicitly threaten further punishment in the future, if he should again depart from them on a significant issue) is to attempt to manipulate him rather than to show respect for his reaching the result that he thinks is best, even if in doing so, he parts ways with his frequent-fellow-travelers.

In addition to being a reprehensible way to treat a colleague, the four Justices' evident attitude of entitlement to the Chief Justice's vote on every important issue could also prove counterproductive.  As Judge Richard Posner said after the ACA decision came down:   “I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’ Right? Maybe you have to re-examine your position.’”  Exactly. 


Michael Duff said...

This reminds me of Joe Singer's "Normative Methods for Lawyers," 56 UCLA Law Review 899 (2009). Roberts seemed unable to make normative arguments about institutional credibility. The dissenters go into all or nothing mode unable or unwilling to take the risk of really explaining in normative terms why they disagree with Roberts. As a result almost no one is satisfied they have received authentic guidance as to what has truly happened.

Joline Rose said...

Doing so suggests a relationship between some of the Justices that is far shallower and far more instrumental than I would have supposed. To punish Chief Justice Roberts (and thereby implicitly threaten further punishment in the future, if he should again depart from them on a significant issue) is to attempt to manipulate him rather than to show respect for his reaching the result that he thinks is best, even if in doing so, he parts ways with his frequent-fellow-travelers. Windows 7 professional product Key
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Ken said...

This is a good post and a good discussion. One of the things I find disappointing in the present court is that how seldom they seem to be persuading each other, or even better, learning from each other and maturing. There are signs of adult communication in some less headline-grabbing cases, but not in the marquee cases.

If we are seeing the start of an evolution in Roberts then it's something historic, and not just in the left-versus-right political sense. Whether or not Roberts was listening to public opinion, I sure hope he is listening to Posner now. There is a plain claque in the Court, and he doesn't need to be in it.

Sam Rickless said...

You may be right that the symbolic merging of identities in the joint dissent represents a "cold shoulder" to CJ Roberts. I don't know enough about SCOTUS rules of etiquette to agree with or disagree with your take on this. But I'm having trouble understanding why the use of a joint dissent that does not join any part of the Court's decision is "a reprehensible way to treat a colleague", a form of "shunning", or why it presupposes an "attitude of entitlement to the CJ's vote on every important issue". Certainly, I can see how the joint dissent evidences displeasure with the CJ, but couldn't the joint dissent merely represent the view (odd as it may be from your perspective or mine) that the dissenting position is so obvious that it positively deserves complete unanimity?

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