Academic journal article Notre Dame Law Review

Judicial Candor and Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (and No More)

Academic journal article Notre Dame Law Review

Judicial Candor and Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (and No More)

Article excerpt


Chief Justice John Roberts's opinion in National Federation of Independent Business v. Sebelius (1) and his vote to uphold the Affordable Care Act's individual mandate (2) generated much criticism. Some accounts suggest that Chief Justice Roberts voted as he did out of concern for his and the Court's legacies, regardless of the governing law. (3) These accounts impute extralegal motives on Chief Justice Roberts, sometimes as indictment (4) and sometimes as praise. (5) Either way, NFIB revived two important questions: When, if ever, may a judge decide a case based on extralegal considerations? And if he does, must he disclose his extralegal considerations in his written opinion?

This Note is concerned with the second question. It resolves that question by arguing that when a judge makes a decision based on an extralegal factor, she should omit discussion of her reliance on that factor and justify her decision with legal reasoning.

This Note is thus concerned with the Chief Justice's decision not to disclose any extralegal reasons in NFIB. It assumes that he voted as he did for extralegal reasons, namely, to preserve the Court's legitimacy. Of course, it is plausible--maybe more plausible than not--that Chief Justice Roberts believes that the individual mandate is a constitutional exercise of Congress's taxing power. (6) Or, Chief Justice Roberts's decision may have been a product of judicial restraint, permitted or required by law--an act of wisdom in the face of the other two federal branches' foolishness. (7) The sole questions with which this Note is concerned are whether the Chief Justice was right to omit from his opinion any discussion of those legitimacy concerns and to justify his decision with legal reasoning.

This Note will say little about what precisely constitutes extralegal reasoning, as opposed to legal reasoning. The question of the legitimacy of judicial reasoning is well-explored. (8) Some would argue that the preservation of the judiciary's legitimacy is a legal consideration. Others would argue that moral considerations are legal justifications for outcomes or that the law can be altered to accommodate a judge's conceptions of morality. This Note leaves it to the reader and the jurist to draw that line.

Relatedly, this Note will take a subjective view of judicial candor. The assertion that an actor should disclose what he believes the reasons for his actions were is a subjective prescription for candor, where the assertion that he should disclose what the reasons actually were is an objective one. In a similar context, Professor Idleman has noted that the subjective view simplifies discussions on candor and is likely the view readers already have in mind. (9)

This Note's first Part explores two landmark Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey (10) and NFIB, that may have been decided based on extralegal considerations. Part II describes three prominent theories of judicial candor with an eye to the results they might yield with respect to extralegal reasoning. Part III offers and defends a new, partial theory of judicial candor. This theory is that a judge who employs extralegal reasoning should omit discussion of her reliance on that reasoning and justify her decision with legal reasoning.

The first two Parts will demonstrate that there is a strong presumption for judicial disclosure and an even stronger one against insincerity. This Note accepts those presumptions, but only where the reasoning in question is legal. Thus, a judge should omit discussion of his reliance on extralegal considerations because: (a) the alternative asks too much of the judge; (b) disclosing extralegal reasoning risks leading other judges to believe that engaging in extralegal reasoning is normal and proper; (c) such disclosure is defiant and disrespectful to litigants and to the public; (d) disclosing extralegal reasoning risks legalizing that reasoning; and (e) such disclosure harms the judiciary's legitimacy. …

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