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Friday, July 06, 2012

Roberts wrote both Obamacare opinions -

Roberts wrote both Obamacare opinions -
A reader wrote this very interesting comment:

I drew the opposite conclusion from this report, which may or may not be true. My reasoning is as follows.

I once spent a year as a law clerk in an appellate court. When you are presented with a complicated case, especially a "case of first impression," requiring the interpretation of a law that has never been analysed by a court at your level before, you quickly learn not to trust first impressions. When you read and hear arguments initially, you can find yourself believing one thing, but further research into the record of the case, statutes, and precedents can lead you to the opposite conclusion.

In short, I found as a clerk that I could not truly know what my own opinion was concerning a complex case until I had done some substantial work drafting arguments for the judge to use in the judge's opinion (my own opinions, of course, were without consequence except as they helped inform the judge's decision).

The world of jurisprudence is different from the world of politics. If a politician cannot immediately opine on a given event and then maintain that opinion forever without reflection, that politician is indecisive in the first case and inconsistent in the second. Deliberation is anathema.

Judges must deliberate. When I hear that Roberts thought one way, but upon forming his own arguments was forced to come to a different conclusion, I can only conclude that despite my differences of opinion with Justice Roberts, he does in fact have the sort of mind and temperament that an appellate judge should have.

What the recent history of this court has shown me is that Republicans are still far from their dream of stacking the judiciary with judges that will obey them. Any qualified person they appoint will be too logically consistent and thoughtful to follow the party line. And that is somewhat encouraging.

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