As regular readers know, 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. For some reason, this fallacy recently seems to come up in connection with Justice Ginsburg. Tu quoque made another appearance in today’s decision in Dart Cherokee Basin Operating Company, LLC v. Owens–and, once again, Justice Ginsburg was at the center of it.
Last year, Justices Ginsburg launched a tu quoque criticism against Justice Sotmayor, who basically brushed it off. Later that term, in Hobby Lobby v. Burwell, Justice Ginsburg was on the receiving end of a tu quoque criticism from Justice Alito. This time, Justice Ginsburg acknowledged her change of heart and invoked the famous line from Justice Jackson: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” (For more detail, see my earlier post). Aptly enough, Justice Ginsburg got it right the second time: fear of inconsistency is no justification for error. So her inconsistency about inconsistency was cause for celebration.
Alas, Justice Ginsburg obliquely raised another tu quoque criticism in Dart. Writing for the Court, Justice Ginsburg found jurisdiction (and reached the merits), whereas Justice Scalia and three of his colleagues dissented. Interestingly, the Court had previously reached the merits in a case that posed the same jurisdictional problem–yet no member of the Court had raised any jurisdictional concerns. Apparently viewing the Court’s prior oversight as significant, Justice Ginsburg dropped a tu quoque footnote: “Today’s dissenters joined the opinion in Standard Fire Ins. Co. v. Knowles, 568 U. S. ___ (2013), without suggesting any lack of jurisdiction to reach the merits.”
Justice Scalia responded in kind by invoking Justice Ginsburg’s own line from Hobby Lobby:
I come, finally, to the Court’s stinging observation that I joined the majority opinion in Standard Fire Ins. Co. v. Knowles, 568 U. S. ___ (2013)—a case that arose in the same posture as this one, but that was resolved without reference to the question whether the appellate courtabused its discretion. Ante, at 8, n. 2. …
As for my own culpability in overlooking the issue, I must accept that and will take it with me to the grave. But its irrelevance to my vote in the present case has been well expressed by Justice Jackson, in a passage quoted by the author of today’s opinion: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion), quoted in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___, n. 11 (2014) (slip op., at 12, n. 11) (GINSBURG J., dissenting).
Justice Scalia’s candid admission of error–joined by three colleagues–does as much as any other opinion in the history of the Court to justify the rule against inferring silent or sub silentio jurisdictional holdings. Usually, silence is just silence. And the game of figuring out when it’s not generally isn’t worth the candle.
So why did Justice Ginsburg keep her tu quoque footnote in the opinion? Maybe she views the fact that the error was so widely overlooked as evidence that there was no error at all. That view would be consistent with Justice Ginsburg’s general interest in sub silentio precedents, which she previously discussed in Hibbs v. Winn. Or maybe Justice Ginsburg simply meant to introduce an interesting background factoid, without leveling an accusation at all.
There is, of course, another possibility. While tu quoque accusations may not hold much water from the standpoint of logic, they persist because they are powerful rhetoric. And after reading a dissent that accuses her of “tortur[ing] logic, failing to live in “a rational world,” and engaging in “obvious non sequitur,” Justice Ginsburg might have felt justified in returning a little fire. It is the dissent, after all, that includes an admission of error that its author will “take … to the grave.”