“The Supreme Court Erred Again”

My friend, Eric Hines, is one of most well-informed lay persons about the law that I have come across. I suppose that is not surprising given his wide-ranging education, and his long career as a senior Air Force officer.

Eric writes a blog, entitled A Plebe’s Site.  Eric is very conservative. He is also intellectually honest and open-minded. That said, he is a skilled debater. So, if you take him on, you best be prepared for a robust exchange.

At his blog you will find trenchant analysis of legal, economic and political issues. His most recent post, The Supreme Court Erred Again, is just such an example. In that post, Eric skillfully criticizes the Supreme Court for the ACA ruling in King v. Burwell. It is worth a read. In fact, A Plebe’s Site is always worth a read.



Guest Post: Eric Hines on Justice Kennedy’s interview on the popular acceptance of controversial opinions and dumbing down legal education

Eric Hines is a regular reader and provides a lot comments. He is smart and very conservative. Eric is a former officer in the United States Air Force and a systems engineer. He is also a talented blogger and writer. In a Kirkus review of one of his books, the reviewer described Hines’ effort this way: “An informed, articulate conservative manifesto that will shed light even for those who disagree.” While Hines has no formal legal training, many times his reasoning is both simpler and superior to those of us who do.

Eric sent me an e-mail, and, with his permission, I reprint it in full below (with minor edits). It is interesting and provocative.  On the popular acceptance of Supreme Court opinions, he urges the Justices to explain their controversial opinions in speeches to average Americans, noting that regular people are not as dumb as Kennedy apparently believes. At the end of the post, he gives an informed lay person’s opinion about shortening legal education by asking one penetrating question.

Here it is:

Following is an excerpt of an excerpt of an interview with Justice Kennedy [on the Wall Street Journal blog, here]:
     Q: You are in the majority more than any other justice, meaning that you cast the deciding in vote in most of the controversial cases. How do you view that responsibility?
     A: When you take that vote and it’s a difficult case and, say you’re in the majority, 5-4 or 6-3, there are not a lot of high fives and backslaps. It’s a moment of silence as you realize that in a difficult case, you are going to have to write an opinion that commands the allegiance of the polity. We are judged by what we write. We don’t go around giving speeches about how great our opinion was. If it is a difficult opinion where half of the country is going to be in strong disagreement, sometimes more than half the country, we draw down on the capital of trust.

I hope I’m misreading him.

Aside from the widespread meme that he’s “the deciding vote” (what are the other four Justices, jellyfish along for the ride?), “write an opinion that commands the allegiance of the polity?” Popular acceptance is the standard rather than what the law requires? “…half of the country is going to be in strong disagreement…we draw down on the capital of trust?”

How does he think that works? The American people, in the aggregate, aren’t as dumb as he apparently thinks we are. True enough, an opinion might cause an uproar, but if we see the Court ruling on the basis of law–even if we don’t like the outcome–we’ll have more respect, more trust, in the Court than if we see it ruling on the basis of the political winds.

“We are judged by what we write.” Indeed, they are. And with controversial opinions, it would be useful if they did go around giving speeches explaining their logic.

[Kennedy is] right, though, on an earlier response to a question about addressing the cost of law school by shortening the curriculum: how would dumbing down law school address anything useful?

Eric Hines


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