The values underneath strategic voting

Writing about Kagan and Breyer’s apparent decision to strategically join the majority on limiting Congressional spending power, Scott Lemieux is quite reasonable that such strategic voting is inevitable and even (marginal) desirable.  The Court is a political institution, and it’s silly to pretend like it’s not. However, ‘political’ is not an intrinsically dirty concept. If judges recognize their political responsibilities, they will be more likely to render good decisions. That is: decisions which reflect the unique TYPE of decision-making that judges are tasked with.

However, I don’t want to let this go too far. Just because judges are political doesn’t mean they are precisely the same as all other actors in the political process.

Or, to be more precise, I think politics ought to include a balance between genuine responsibility to constitutional/normative values and the strategic calculation that goes into the rough-and-tumble of coming to actual decisions. And right now the closest thing we’ve got to that is the normalized process of judicial rulings.

I think there is something unethical (though I don’t necessarily love the language of ethics to describe it) about reaching a decision that you fundamentally disagree with, just because it obtains other political benefits. I just ALSO think it’s unethical to hold fast to your personal convictions about one specific issue when doing so imperils your sense of the broader structure of what is politically right.

Part of what it means to be a political actor is to face the difficult necessity of resolving these problems. As I’ve said many times, I identify very strongly with Rawls, and get a lot out of his idea that liberalism is defined primarily by your capacity to give decisions that can be justified via public reason.

However, that only sets a minimum threshold. In this case, there is no doubt that finding against Congressional power to tie the hands of the states CAN be justified. This concept of public reason only works if we have reason to believe that the reasons people give are ones that they can actually support. If judicial decisions are wholly ciphers for a separate political will, then there is no reason to pay any respect to the system of law as a whole. What it produces would be pure artifice.

I have a great deal of respect for the Madisonian system, but that respect runs far deeper than the surface level. While political factions fighting with one another is the apparent nature of the system, the argumentative, combative, self-interested exterior is only possible because of some deeper shared commitments.

While pragmatic politics may require many compromises of principle, we should not lose sight of the fact that these ARE compromises. There IS something going on underneath. And we should never simply accept the premise that ‘politics’ is identical with strategy.

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