Andrew Koppelman (Northwestern University School of Law) has posted Frivolous Opinions on SSRN. Here is the abstract:
-
Everyone knows that legal arguments can be frivolous: we operationalize this idea by invoking the "laugh test." Frivolous legal arguments subject their authors to sanctions and ridicule. Judicial opinions rely on legal arguments, and it follows that such opinions can themselves be frivolous. Because of the "good behavior clause," federal judges are not easily removed for frivolity, but they can be ridiculed and the legal system can and should sanction frivolous opinions by depriving them of legal effect.
This essay uses a hypothetical judicial opinion striking down the mandatory coverage provisions of the Patient Protection and Affordable Care Act to illustrate nullification of a frivolous opinion. No opinion striking down the mandate could fail to be frivolous. There is no nice way to say this: the silliness of the constitutional arguments against the mandate is apparent to any competent lawyer who assesses them in good faith. There could be only two possible explanations for such a frivolous opinion: (1) a naked assertion of raw power by politicized right-wing justices contemptuous of democratic processes, or (2) a sort of mass hallucination induced by the inane rantings produced by the echo chamber of the right-wing blogosphere.
An opinion striking down the mandate would be laughable. The best response of the legal system to such an opinion would be two-fold. First, intelligent and competent lawyers, judges, and scholars should ridicule the justices--exposing their opinion as a mere jape. Second, the opinion should be nullified. Lower courts and the President should deny the opinion any and all legal effect. An opinion striking down the mandate would go beyond the outer limits of the Supreme Court's legitimate authority, and responsible legal officials should treat the opinion as a bad joke--not funny and not law.
