Ching on Roberts's Opinion in NFIB v. Sebelius

Kenneth Ching (Regent University - School of Law) has posted Roberts on Obamacare: Liar, Lunatic or Legitimate? on SSRN. Here is the abstract:

When Chief Justice John Roberts issued his opinion in National Federation of Independent Business v. Sebelius, he was widely accused of being a liar. Decorum required that people not use the word “liar,” but it was implied clearly enough. Critics called his opinion “political” or “illogical.” What they meant was that he did not mean what he had said. What they meant was that he had lied. But if Roberts lied, his opinion is legally illegitimate. This article asks whether we should, in fact, believe Roberts lied.

This article argues that the evidence strongly suggests that Roberts did not lie. Neither his reputation nor the content of his opinion support the accusation. Further, this article argues that Roberts’ opinion satisfies the criteria of a legitimating legal objectivity. Although this article defends controversial aspects of Roberts’ opinion, that is not its main point. This article’s purpose is to argue against the cynical and self-defeating practice of accusing judges of playing partisan politics.

This article makes several contributions to the literature on politics and judging. It is the first to argue that not only should we refrain from assuming judicial decisions are partisan but also that we should presume judges give us truthful statements of their opinions. It applies for the first time a conception of legal objectivity known as “objectivity as publicity” to a judicial opinion. It analyzes those controversial aspects of Roberts’ opinion, concluding that not only has Roberts not lied but that he is correct in his opinion. And it also provides evidence regarding Roberts’ reputation for truthfulness. This article uses Roberts’ opinion as a case study in legitimacy and objectivity, however its analysis could be applied to other judicial opinions accused of being partisan.

Interesting and recommended.

For my take on the implications of the opinions in NFIB, see The Legal Effects of NFIB V. Sebelius and The Constitutional Gestalt.