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Mincing no words, in response to a question from Frederick Schauer, Judge Posner explains that our “adversary system is overrated,” and this justifies him looking outside the record.

Professor Frederick Schauer: You tend to go beyond the record, the briefs, and oral argument more often than most appellate judges, and you have noted that you have been criticized for it. Could you explain your practice, explain the criticism, and explain why you think the criticism misses the mark?

Judge Posner: I find that the briefs and arguments, and lower-court opinions, very often do not answer the questions that I think are important to a sound understanding of the case. So, I look for the answers, often by an Internet search. I tell lawyers if you don’t like me doing that, do it yourselves. I do try to be sensitive to risk of error in judicial fact research. I understand the criticism, because the lawyers want to control the case. They invoke the glories of the adversary system. I think the adversary system is overrated. Not that I want to convert to the inquisitorial system that prevails in Europe (except the U.K.) and most of the rest of the world, but I want to see the adversary system taken down a peg. I am a big fan of Fed. R. Evid. §706, which allows a judge to appoint his own expert witness, as opposed to having to depend entirely on party experts.

Correct me if I’m wrong, but Rule 706 only applies to District Judges, not Circuit Judges? But do you know what rule is relevant? As Chief Judge Wood pointed out in her dissent from Judge Posner’s fashion show, he neglects Federal Rule of Civil Procedure 56  concerning the standard for summary judgment:

I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post‐ argument experiment conducted in chambers by a judge. Ante at 9–10. As the majority concedes, this cannot be con‐ sidered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a dis‐ puted issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment pro‐ ceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have al‐ ready shown to be inconsistent with government regulations for hygiene within a meat processing plant.

In Ron Collins’s excellent interview with Judge Posner, we find this gem courtesy of Judge Henry Friendly, advising his junior colleague about possible promotions to the Supreme Court.

Around Christmas of 1984, Judge Friendly inquired about Posner’s possible “elevation” to the Supreme Court. Even back then, Posner thought it doubtful. As he expressed it in a December 26, 1984 letter: “I have become an object of mysterious fascination to a segment of the press, which is doing a pretty good job of portraying me as a weirdo on the basis of some of my pre-judicial academic writing (misrepresented) and a handful of my opinions (misunderstood). Of course there is precious little I can do about any of this, but I am consoled by the thought that eventually the press will lose interest in me and move on to intrinsically livelier topics.”

Assuredly, Henry Friendly knew well what it meant to be a great judge but nonetheless passed up for a seat on the High Court. In a January 10, 1985 letter, he tried to console Posner: “These things are annoying but all this will pass. Unhappily this may not be without injury to your immediate prospects for elevation but I gather that you did not think these were very high in any event. You are wise to have acquired immunity for Supreme Court fever – a disease that has ruined many a judge.”

It’s a fascinating thought for Judge Friendly to write about “Supreme Court fever.” Three decades later, Judge Posner, along with his colleagues Lee Epstein and William Landes, explore the notion of Circuit Judges who “audition” for the higher office.

In chapter 8 we study the behavior of federal judges who have a realistic prospect of promotion. Desire for promotion is a significant motivating factor in many workplaces, and federal district judges are not infrequently (though not routinely) promoted to courts of appeals, while court of appeals judges are sometimes, though rarely, promoted to the Supreme Court ; at this writing, eight of the nine Supreme Court Justices are former federal court of appeals judges, although they are a tiny minority of all court of appeals judges. We ask whether aspirants for promotion within the judiciary alter their judicial behavior in order to improve their promotion prospects— in other words whether they “audition” for appointment to a higher court. Comparing the voting behavior of court of appeals judges when they are realistically in the promotion pool and thus potential auditioners with their behavior after age eliminates their prospects for promotion and with the behavior of court of appeals judges who were never in the pool, we find that potential auditioners do tend, though only on average, to alter their behavior in order to improve their prospects for appointment to the Supreme Court. We conduct a similar analysis of district judges’ auditioning for promotion to the court of appeals, with similar though weaker results . Auditioning behavior by judges is important evidence of the role of self-interest in the judicial utility function.

Epstein, Lee; Landes, William M; Posner, Richard A (2013-01-07). The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Kindle Locations 446-449). Harvard University Press. Kindle Edition.

One of the most oft-cited examples of this “auditioning” process was Circuit Judge John G. Roberts, who issued a decision on a detainee case that was favorable to the Bush administration, shortly before President Bush selected him to replace Justice O’Connor. Did JGR get, what his former boss call “Supreme Court fever.” I wonder if Judge Friendly gave similar advice to other law clerks?

 

An orthodontist, who employs more than 50 employees, sought a declaration that the delay of the ACA’s employer mandate was invalid. The 11th Circuit, in a divided opinion, found that the plaintiff lacked standing. I’d like to draw attention to one aspect of the dissent. For purposes of standing, you accept the “material allegations” as true.

The majority says that because “Kawa’s complaint does not mention the word ‘interest,’ let alone allege that Kawa had specific plans to invest its money into an interest-bearing asset . . . [its] lost-interest argument is waived.” But I am mindful that “[w]hen the defendant challenges standing via a motion to dismiss, both trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993) (quotation marks omitted). We may find standing “based on the facts alleged in the complaint.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (emphasis added). …

I agree with the majority’s suggestion that Kawa has poorly explained how expending funds in 2013 rather than in 2015 would injure it. However, a party’s deficient enunciation of a legal argument does not strip us of our duty to view the complaint in the light most favorable to the plaintiff and determine whether it has alleged facts sufficient to show standing. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (“Facial attacks on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” (quotation marks omitted)).

I have long viewed Halbig (now King), along with the origination clause challenge, as the opportunity for the Supreme Court, and Chief Justice Roberts in particular, to get a “mulligan” for NFIB v. Sebelius (see here, here, and here). Incoming Senate Majority Leader Mitch McConnell views King in a similar fashion, but from a very different angle.

In remarks before the WSJ CEO Council, Senator McConnell is asked about Obamacare, and whether it can be repealed. Here are his entire remarks for context:

I think it’s the single worst piece of legislation we’ve passed in at least the last half century and the biggest step to European-ize American health care.

Having said that, it bears the president’s name. The chances of his signing a full repeal are pretty limited. There are parts of it that are extremely toxic with the American people. The elimination of the 40 hour work week. The individual mandate. The medical device tax. The health insurance tax. I think you could anticipate those kinds of things being voted on in the Senate. They’ve not…Such votes have not been allowed in the past.

Who may ultimately take it down is the Supreme Court of the United States. I mean there’s a very significant case that will be decided before June on the question of whether the language of the law means what the language of the law said, which is that subsidies are only available for states that set up state exchanges. Many states have not. If that were to be the case, I would assume that you could have a mulligan here, a major do-over of the whole thing, presented– that opportunity presented to us by the Supreme Court, as opposed to actually getting the president to sign a full repeal, which is not likely to happen.

The confluence of law and politics in King is fascinating. Putting aside the merits of the case for a moment, McConnell is correct about one thing. If the Court invalidates the IRS rule, come summertime, a lot of states will be in a very precarious position. If they do not establish exchanges–and at least Florida and Louisiana said they would not–insurance will quickly become unaffordable for millions. This outcome creates an ultimate game of brinkmanship between the Congress and the President. Forget about the budget and shutdown. This game of chicken will reverberate far beyond barricading monuments in Washington.

Consider the possibilities. The Court invalidates the rule in June. Congress passes a bill to provide subsidies, along with repealing other aspects of Obamacare, for example the unpopular 40-hour work week requirement or various other taxes. If Obama vetoes that, then millions are unable to afford insurance. Would Republicans take the hit there, or the President? What if Congress lumps it in with repealing the individual mandate? Or the requirement that mandates that old plans cannot be grandfathered? You get the gist. It is in this sense that McConnell sees a possible “mulligan.” The Court’s invalidation of the rule would allow Congress the opportunity to revisit portions of the law that are not working.

It is in this sense that I disagree with my friend Nick Bagley who told WaPo:

“McConnell confirms here that the litigation is politics by other means. It sounds like McConnell is treating the Supreme Court as another political institution.”

I don’t think McConnell is treating the Supreme Court as a political institution at all. (If you want to see how politicians treated the Supreme Court as a political institution concerning NFIB v. Sebelius, read Unprecedented). Rather, I think he is seizing the opportunity after the Court acts. There have been many Supreme Court decisions in the past that invalidated acts of Congress, that then gave way to an impetus to legislative overrides. A series of employment decisions in the late 1980s and early 1990s yielded the Civil Rights Act of 1991. Employment Division v. Smith begat the Religious Freedom Restoration Act. Boerne v. Flores resulted in RLUIPA. Hamdan resulted in the Military Commissions Act. Ledbetter v. Goodyear resulted in the aptly named Lilly Ledbetter Fair Pay Act. Etc.

One obvious difference between those cases and King is that members of Congress liked the laws before the Court invalidated them, and took action to override the Court. Unlike Obamacare, there were no clamors to repeal the employment laws prior to the Civil Rights Act of 1991. But I don’t know how much that matters. Politicians in all case seize the moment when the Court invalidates a law, to pass a new law that changes the ex ante status quo.

If the Court invalidates the rule, Congress will have to react in some way. They can either (a) do nothing, and watch people lose coverage, or (b) do something, to provide legal subsidies. Because of the new Republican-controlled Congress, there will be a huge asymmetry between what that “something” is, and what the President wants. And, in light of our separation of powers, there will have to be compromise. Vetoing a bill that eliminates unpopular elements of Obamacare, to save popular elements, will be a risky calculation.

Of course, in the end, pulling at Obamacare, one string at a time, may cause the law to ultimately Unravel.

Today, the House Judiciary Committee held a hearing on the President’s Executive Action on Immigration. During his opening remarks, Rep. Lamar Smith (R. Tx) cited my recent post on the legality of the President’s orders.

“Constitutional law professor Josh Blackman of the South Texas College of Law writes, ‘It cannot be the rule of law that the President can create arbitrary criteria of where the law will not apply and then exempt anyone who meets those criteria.  This is the very type of broad policy against enforcement that is so extreme as to amount to an abdication of the President’s statutory responsibilities.’”

I will have a much more in-depth version of this argument in the next issue of National Review, which will be online this Friday.

You can see the clip here at 26:00, or on YouTube.

H/T Zoe O’Herin