My point in my latest post may not have been clear -- I wasn't disagreeing that the outcome was unpredictable and unpredicted. I was taking your word for it that that is indeed the case (that the justices exercised novel reasoning that none of the legal scholars who studied the case anticipated), and asking (rhetorically, because I think the answer is "yes"), doesn't that mean the possibility exists that the justices constructed a rationale for reaching a desired outcome, rather than performing a totally impartial, outcome-blind analysis? (Again, I'm still not saying that's what happened, just that it could have been what happened, and I think it definitely does happen in at least some of the country's lower, lesser courts of law.)
Part of the reason that I linked to those articles is that they contain some possible answers to this question.
In the Walker article, the professor disclaims any opinion on the matter himself, but ventures that "one could say" the majority opinion could represent a "judicial power grab over the Executive in the modern administrative state". In other words, according to this theory, the majority may have crafted the opinion with the intent of reducing the power of the executive.
To understand that theory, we have to step back a bit and consider some history. The field of administrative law as we understand it today is of fairly recent origin. It evolved out of the system of extraordinary writs at common law. Most notably, the writ of
certiorari allowed a superior court to review the records of an executive official and to quash his decision if it was made without jurisdiction. The sold ground for review was lack of jurisdiction. According to the Supreme Court of Canada, administrative law had reached a "rudimentary state" by 1867:
Att. Gen. of Quebec v. Blaikie et al., [1979] 2 SCR 1016, 1018.
(One interesting factoid is that use of the term "
certiorari" in the US Supreme Court process is only very loosely related to the common law writ of the same name, because "at common law,
certiorari does not lie against a decision of a superior court judge":
Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, 865. At common law, the sold remedy for an unfavourable decision by a superior court is a direct appeal, and if no appeal is authorised by statute, there is no way to challenge the decision.)
In the old days, the legislature was responsible for drafting laws, and if there was any ambiguity in the law, it would fall to the courts to determine the proper meaning of the statute, according to the ordinary rules of statutory interpretation. However, in modern times, the legislature instead often enacts a very vague and open-ended statute and then tasks an administrative agency with effecting its implementation by promulgating regulations -- in effect, the legislature delegates its lawmaking powers to administrators. In the UK, such regulations are called "secondary legislation", and I think this is a good term; it contrasts to "primary legislation" passed directly by the legislature. Those terms are not used in US and Canada but the concepts are.
One of the overriding principles of administrative law is that the administrators are presumed to have the expertise to implement the statute with which they have been tasked, and thus the Court is loathe to interfere. In other words, the modern administrative law was the beginning of a major shift of power where the responsibility for interpreting laws moved from the courts to administrators.
The complaint in
King was filed under 5 USC, ch 7, titled "Judicial Review", the statutory successor to the system of extraordinary writs at common law. The plaintiffs alleged that the Secretary of the Treasury (referred to as the IRS) lacked the power to pass legislation extending tax credits to all states because the statutory regime unambiguously precluded such credits. The government's primary position was that the statute clearly authorised the credits, such that the regulation, although valid, was wholly unnecessary. The government's alternative position (in case the statute was ambiguous) was that the regulation was a valid exercise of lawmaking power delegated to the IRS.
The opinion of Roberts CJ rejects both of the government's arguments. First, it finds that the statute is ambiguous and that either interpretation could be reasonable. He could have ended the opinion there by finding the IRS regulation to be valid, but instead, he finds that the IRS lacks the authority to regulate this topic because of its significance, and that it is instead the province of the Court to decide how to implement the statute. From reading the opinion, Roberts CJ makes this sound like a natural thing, but it's actually a very surprising development that, to the extent it applies more broadly, reverses the general principles of administrative law (although as both blogs note, it may not be applied outside of this case). In other words, although the complaint was filed as a judicial review case, the Court did not actually review any secondary legislation -- instead, it offered its own opinion on the meaning of the ambiguous statute.
Is it possible that the Court decided that this was the case to
- turn the tides of deference and place a check on executive lawmaking,
- while also avoiding hurting ordinary US residents receiving tax credits,
and thus crafted its opinion accordingly? It's possible, but so are many other explanations. As Walker notes, if the Court just wanted to achieve the same practical outcome, there are simpler ways it could have done so. It's also possible that this check on executive power was some form of bargaining chip that Roberts CJ used as a condition of his voting with the majority, as forummm essentially says. Many things are possible. The speculative nature of the exercise may be why Walker purports to be sharing what "some may say", rather than his own opinion.
