Constitutional (Pre)Textualism

On Tuesday, the government announced that the decennial census forms were being printed without the citizenship question, following the Supreme Court’s challenge to the veracity of the administration’s claimed rationale for its inclusion. It’s not that the Executive can’t make a bad and counterproductive political decision. It can, and often does. But as Chief Justice John Roberts wrote:

The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

Using the gentle and moderate language of the judiciary, Roberts called the reason “contrived.” which is kinder than calling it an outright lie. Which it was, because neither Trump nor anyone serving him are very good at keeping their real motivations secret. Problem solved? Meet Wednesday.

DoJ lawyers got the call from Judge George Hazel’s chambers to explain what was going on, as if they had an answer. There was a schadenfreude moment here, as government lawyers learned what it’s like for those of us with erratic clients with impulse control issues. But Linda Greenhouse, despite her refusal to release her death grip on her SCOTUS conspiracy theories, makes an insightful observation.

I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.

Was she hiding outside the CJ’s chambers to learn of this shift. No, and she admits it.

I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.

She goes on to explain why the opinion reflects one decision for 23 pages, then inexplicably comes out the other way. She’s right that when you read decisions long enough, you see things, “between the lines” as it were. And this decision had all the hallmarks of starting out in one direction, traveling well down the road to perdition, but ending up somewhere else.

Americans are a funny bunch in many ways, one of which is our almost-childlike love of fairness. If you want people to support a position, claim the mantle of fairness. It doesn’t necessarily mean it’s fair at all, because another one of the funny things about us is that we can’t be bothered to think hard enough to actually decide for ourselves if its fair, and we’ll be happy enough to stop at the headline that says, “This is FAIR!” We’ll take you word for it and go back to sipping our soy latte or swilling our beer.

You know what’s not fair? Lying. And if the Trump administration lied about its reason for including the citizenship question on the census, then made up a slightly reasonable excuse for doing so that was remotely swallowable, but not remotely true, then the Supreme Court’s refusal to buy the bull is the sort of decision American’s hope it will deliver. That’s only fair.

On this Fourth of July, we should remember that America will not tolerate lies from its government officials. We are not a nation of liars, but a nation of fair people.

But does anybody, anywhere, believe that the Chair of the House Ways and Means Committee, Richard Neal, demands Trump’s tax returns because he just wants to check up on how well the IRS is doing? His argument relies on the mandatory “shall” even though his excuse is no less full of, ahem, falseness than Wilbur Ross’.

There are good reasons to want to see Trump’s tax returns, to ascertain his exposure to foreign influence, to determine if he’s making decisions that serve the nation or serve his bank account. But these aren’t the reasons Neal relies on.

It doesn’t matter that Trump is the only president in generations not to disclose his tax returns before being elected, or that his excuse for refusing to do so is similarly malarkey. It wasn’t required and he got elected anyway. That should change, but it wouldn’t change the past. The point isn’t whether we want to see Trump’s tax returns, because we believe he’s either dirty or lying about his wealth, and we’re all sure he never paid his “fair share” of taxes because he gamed the code like anyone with a decent accountant and little respect for honesty would do.

But this isn’t just a Trump trick. Anybody remember Whren, where, long before Greenhouse’s conspiracy turned her beloved Court into a cesspool of political hacks doing Darth Cheeto’s bidding, Justice Scalia openly held that lying cops was as American as apple pie?

But although framed in empirical terms, this approach is plainly and indisputably driven by subjective considerations. Its whole purpose is to prevent the police from doing under the guise of enforcing the traffic code what they would like to do for different reasons. Petitioners’ proposed standard may not use the word “pretext,” but it is designed to combat nothing other than the perceived “danger” of the pretextual stop, albeit only indirectly and over the run of cases. Instead of asking whether the individual officer had the proper state of mind, the petitioners would have us ask, in effect, whether (based on general police practices) it is plausible to believe that the officer had the proper state of mind.

Americans love fairness. Americans hate lies. But there’s one thing more important to Americans than either their love of fairness and their hatred of lies, and that’s loyalty to their tribe. And that is the pretextual reading of our Constitution, which enabled us to believe with all our heart that as long as we can come up with a “plausible” argument to believe we had the “proper state of mind,” nothing else really matters.

21 thoughts on “Constitutional (Pre)Textualism

  1. Richard Kopf


    Excuse me for seeming to blow happy smoke up your butt, but this post is brilliant. Behind all the fancy words and tedious explanations (and boy was the census decision an example of both), as so often happens, the proper question for a judge simply boils down to this: Am I being intellectually honest or is my decision pretextual? The question may be simple, but the answer never is.

    All the best.


    1. SHG Post author

      Some may say I have a small mind given my foolish consistency, but it’s the only mind I’ve got.

    2. F. Lee Billy

      The Supremes are an enigma wrapped in a conundrum–we “like” that word. Occasionally they get one right, but not often: a highly overrated branch of govt. Roberts stepped up to the plate, and Greenhouse saw thru the glass darkly. We tend to pay them no nevermind.

    3. Kathryn Kase

      Sorry, my frustration with the speculation about Roberts’ vote in Dept,. of Commerce is that no one appears to have utilized the oral argument transcript to see that, in fact, his questions did not (in contrast to, say, the questions of Justices Kavanaugh or Breyer) favor one side over the other. Thus, while I appreciate what you did here (and, yes, as with Judge Kopf, I saw it), I also come here for intelligent analysis of the materials in the public record. It’s not as if Roberts’ opinion is the only evidence available regarding his point of view at oral argument. (For the uninitiated, timing is relevant since the justices vote immediately after oral argument on each case.) Is it too much to ask that someone use these materials before commenting on alleged changes of position or intellectual honesty?

      1. David

        As an appellate lawyer, questions at oral argument are usually poor indicators of a judge’s view. On rare occasion, sure, but generally, extrapolating much from them is a fool’s errand, which is why we wait for an opinion to know who wins.

        But are you arguing that failure to spend an hour reading oral arg transcripts somehow precludes “intelligent” analysis of the actual opinion? Rather harsh condemnation for such a shallow reason, particularly in this case.

        1. Kathryn Kase

          Interestingly, there is a body of empirical scholarship on the predictiveness of questioning in SCOTUS. My experience is colored by having been a part for 15 years of a capital litigation shop that had a number of cases heard in SCOTUS. I found that reading SCOTUS’ oral argument transcripts in criminal cases helped immensely in understanding where the Court was likely to go in its opinions. (It also assisted in meeting the capital litigator’s duty to preserve emerging legal issues.) In sum, don’t knock it ’till you’ve tried it!

          1. David

            I see SHG has deleted many of the comments from yesterday, including his own. Probably for the best. I’m sure Ms. Kase is a fine lawyer who just came on a bit too strong, and the comments had become rather harsh.

            With that. I wish you well, Ms. Kase, even though I may not share your views.

            1. SHG Post author

              KK is a friend and an excellent lawyer, so I decided it was best to turn the temperature down.

  2. albeed

    “The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

    Thank God we have the Supreme Court to protect us from the BS, lies and fallacies stated by certain government branches and their agencies to its citizens. I am so happy that they are protectors of the “truth”, especially during this July Fourth Celebration.

    Now I am wondering who is it that protects us from the BS, lies and fallacies of the Supreme Court?

    Wait, I know, it must be the media!

  3. B. McLeod

    In actuality, America tolerates all kinds of lies from its governmental officials. Starting right around Nixon, I think most people began to assume that lies will be most of what we are getting from governmental officials, most of the time. If anything, it is getting worse. Starting with W., the zealots on both sides of the aisle now refuse to back off a lie even when it is exposed as a lie and everybody in the country knows it is a lie.

    If the Court is going to be throwing shit out for lies, it is going to be mighty busy.

      1. F. Lee Billy

        Irregardless of what kids say on Twitter, actuality exists. It’s alive and well in the 21st C. Our president has proven himself a kid on Twitter, with too much time on his hands, AND a playground bully par excellence.

        1. F. Lee Billy

          As in “literally Hitler?” Is that what you’re trying to say, B. McCloudy Day? We read you like an alligator reads his prey, or a shark mistakes a swimmer in the ocean for a seal.
          Literally is a perfectly good word. Use it, but don’t abuse it. Forewarned is forearned, Second Amendment-breath.
          I think we’ve had this discussion once before. However, it keeps popping up at the most awkward moments. Murphy’s Law anyone? .. Not taught in any law school that I’m aware of. But that is another discussion when we have more time to ruminate and chew the awful cud.

          If I was aware of any law schools in my neighborhood, I would get out outta town fast,… Beeecause these do-gooder, self-appointed, self righteous (and privileged people–“above the law”) are not going to help me get out of jail quick, or any time soon enough to make supper, let alone the rent and car payments. Don’t forget: Excise taxes, license and registration, insurance, inspection, tires and frequent oil changes and brake jobs.
          Whaaat a racket thesea people got a going.

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