Inconsistency About Inconsistency at the End of Term

One of my favorite fallacies is the “tu quoque” or “you, too!” fallacy – that is, the argument that a proposition is wrong because it’s advocated by someone who previously said the opposite. An accusation of tu quoque may demonstrate inconsistency, but it doesn’t prove much else.

In that spirit, I’d like to make a tu quoque charge of my own – against Justice Ginsburg.

Earlier this year, Justice Ginsburg wrote Daimler v. Bauman for the Court over Justice Sotomayor’s dissent. During the analytical back-and-forth, Ginsburg launched a surprisingly sharp tu quoque charge: “On another day,” Ginsburg wrote, “Justice Sotomayor joined a unanimous Court in recognizing” a particular point. In Daimler, by contrast, Justice Sotomayor took a different view based on new research.

Yesterday, however, it was Justice Ginsburg who found herself on the receiving end of a tu quoque barb. And the barb was almost identical to the one that Justice Ginsburg herself had previously leveled. In the words of Justice Alito’s opinion for the Court in Burwell v. Hobby Lobby: “Although the author of the principal dissent [that is, Justice Ginsburg] joined the Court’s opinion in City of Boerne, she now claims that the statement [in that opinion] was incorrect.”

To her credit, Justice Ginsburg’s Hobby Lobby dissent not only acknowledged her own substantive inconsistency, but also (contrary to her own prior opinion in Daimler) embraced the general point that such inconsistency doesn’t really matter:

Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.”

In short, Justice Ginsburg has been badly inconsistent on the subject of inconsistency.

Now, if you think there’s something odd about my complaining about all this, then I can only recommend that you try out two very fun but useless words:

Tu Quoque!

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3 Comments

Filed under Judicial Rhetoric

3 responses to “Inconsistency About Inconsistency at the End of Term

  1. William Moore

    This is a fairly disingenuous column, or at best, one that is poorly considered.

    The “inconsistency” attributed to Justice Ginsburg is really case law that is unclear or inaccurate in its development: i.e. a bevy of Supreme Court cases that characterize an earlier decision inaccurately. The position advanced by Justice Ginsburg in the Hobby Lobby dissent are for the purposes of correction and clarification of old case law–it does not represent a reversal of a specific approach explicitly endorsed or a break with settled precedent. Justice Sotomayor does, however, break from a previously held position that was central to the issue at hand. In that way, her inconsistency can be fairly highlighted by Justice Ginsburg without impugning Justice Ginsburg’s credibility.

    • Thanks for your note, William, but Justice Ginsburg presumably raised this point, and acknowledged its inconsistency with Boerne, because she thought it was, to use your phrase, “central to the issue at hand.” Commentators have likewise focused on RFRA’s relationship to pre-Smith case law.

  2. Pingback: RBG is Boerne Again on RFRA | Josh Blackman's Blog

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