By Dr. Ken Broda-Bahm:
The notion of rule of law has taken a beating recently. The outcry from those opposed to the Supreme Court decision on healthcare -- in many ways a flip side of the reaction that occurred in response to the Bush v. Gore decision that ended the 2000 presidential election recount -- reflects a tendency to treat legal decisions as "political" (in the sense of "partisan") when one disagrees with their result. In the runup to Thursday's decision, fully 55 percent believed that Supreme Court Justices would decide the healthcare litigation based on personal or political beliefs, compared to just 32 percent who said it would be based on legal analysis.
In truth, the Court could not have made a decision without one side or the other claiming that politics motivated it. These reactions, both the ones based on the decision, as well as those we would have seen had it gone the other way, point to a skepticism toward the rule of law. Reading the decision and the oral arguments confirms that it is a legal analysis. Maybe it's driven by a legal philosophy resting on political foundations, but it is a legal analysis all the same. Commentary following the decision, especially focusing on the surprising role of Chief Justice Roberts, hasn't seen it that way. For example, the Governor of Louisiana suspects that Roberts might be pandering to the newspapers, and there is a wealth of other speculation on the Chief Justice's various political motives. Maybe there was once a golden age in this country when legal decisions were credible by default and respected based on the institution and the neutrality of the process. But it is safe to say, that we're no longer in that age, if we ever were. The reaction to the Court's decision underscores a lesson that all trial lawyers should take into account: You can't presume an automatic trust in the law. This post looks at some of the practical implications of this skepticism as they relate to the willingness of jurors and observers to "follow the law" in the case, and to the potential for jury nullification.
1. Know the Legitimacy of the Law You're Using
As it dawned on us all Thursday morning that healthcare reform would live another day, those decrying the "politically motivated giveaway of our basic freedoms" simply could not understand the high-fives being exchanged by others over the "principled decision to preserve the legislature's right to improve the basic decency of our society." And vice versa. Bridging the gap has always been the persuader's job, and these days, it seems like that is getting harder.
Other Posts on the Supreme Court Healthcare Arguments:
- Practice the "Three P's" of Oral Argument: The Example of Paul Clement
- Aim Your Oral Argument at Your Judge's Motivating Principle
- Oral Arguments: Cut In To Your Case Before You're Cut Off By Your Judge
- Don't Let Your Judge Reduce You to Absurdity
- Learn From Your Wins and Your Losses
Image Credit: Bobosh_t, Flickr Creative Commons