# Supreme Court DACA Case: John Roberts takes a swipe at Brett Kavanaugh **URL:** \ **Category:** Politics & Elections\ **Created:** [June 18, 2020, 8:52pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925 "2020-06-18T20:52:08Z")\ **Posts on this page:** 17\ **Page:** 1
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 18, 2020, 8:52pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/1 "2020-06-18T20:52:08Z")
While running through Twitter, I came across this [Raw Story](https://www.rawstory.com/2020/06/brett-kavanaugh-walloped-by-john-roberts-in-ruling-on-trump-immigration-policy/) piece. > [@](#): > > “Justice Kavanaugh asserts that this ‘foundational principle of administrative law’ … actually limits only what lawyers may argue, not what agencies may do,” Roberts wrote in his decision. “While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker.” > > “The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves,” he added. > > Roberts continued his upbraiding into a footnote. > > “Justice Kavanaugh further argues that the contemporaneous explanation requirement applies only to agency adjudications, not rulemakings,” Roberts wrote. “But he cites no authority limiting this basic principle — which the Court regularly articulates in the context of rulemakings — to adjudications. The Government does not even raise this unheralded argument.” Sure enough, [it’s in there](https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf) (PDF). I am not a Constitutional Scholar, so I don’t know how common this is for the opinion in a case to personally call out the dissenting justices by name. I am sure it makes sense that they address the arguments made by the losing side that were ostensibly accepted by the dissenting justices but it’s one thing to say “we considered this argument but didn’t feel it had merits and here is why” and to specifically call out a fellow justice. I mean, that must get uncomfortable around the water cooler! Is this actually common? Are there opinions where Warren E. Burger called Byron White a hack? Did William Rehnquist ever call Antonin Scalia a choad? These things are forever, right? ---
**Author:** ![DinoR](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dinor/32/2821_2.png) [@DinoR](https://boards.straightdope.com/u/DinoR)\ **Post date:** [June 18, 2020, 10:04pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/2 "2020-06-18T22:04:50Z")
There was not **a** losing side. Kavanaugh wrote a separate dissent. The main dissent was written by Thomas and supported by Gorsuch and Alito. There were two separate losing sides making different legal arguments. Roberts in that statement was addressing an argument that literally only Kavanaugh made. Even if he had not used the name it would have been obvious it was an attack on Kavanaugh’s argument. It is not wildly uncommon for a justice to write their own dissent against the finding of the court. Sotomayer voted with the majority but also wrote a dissent against part of what was ultimately a plurality, not a majority, opinion. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 18, 2020, 10:12pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/3 "2020-06-18T22:12:11Z")
Thanks for the semantics fun but that doesn’t answer my question. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 18, 2020, 10:57pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/4 "2020-06-18T22:57:17Z")
> [@DinoR](#): > > Roberts in that statement was addressing an argument that literally only Kavanaugh made. Even if he had not used the name it would have been obvious it was an attack on Kavanaugh’s argument. Yes, but I think there’s a significant difference between saying “the argument is wrong” and saying “Justice Kavanaugh is wrong”. Even this message board recognizes that distinction. The OP, to my understanding, was asking how common it is for a SCOTUS decision to mention other Justices by name in a disagreement. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 22, 2020, 2:40am UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/5 "2020-06-22T02:40:34Z")
Yes, that is what I was looking for, thank you. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 28, 2020, 1:25pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/6 "2020-06-28T13:25:32Z")
I don’t see anything unusual about it. It happens in many cases where there is a separate dissent. Usually it is just “the dissent argues that…” but when you have more than one, I’ve seen many times where it says “Justice Scalia argues that…” It’s not a swipe, just a disagreement. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 28, 2020, 7:47pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/7 "2020-06-28T19:47:50Z")
It’s remarkable that so many people clearly do not read the post or discussion and yet respond as if they have. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 28, 2020, 7:49pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/8 "2020-06-28T19:49:23Z")
> [@Little\_Nemo](#): > > Yes, but I think there’s a significant difference between saying “the argument is wrong” and saying “Justice Kavanaugh is wrong”. Even this message board recognizes that distinction. > > The OP, to my understanding, was asking how common it is for a SCOTUS decision to mention other Justices by name in a disagreement. Just gonna repeat this post so maybe someone can grasp what I was asking for. Unless it has indeed never happened that a ruling calls out another justice on the same court by name for being a putz… In which case, congrats to Kavanaugh for setting precedent! ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 30, 2020, 8:56pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/10 "2020-06-30T20:56:01Z")
And my response answered that. It is very common. Extremely common. Mammothly common. But it is done when there are multiple dissents and a separate dissent is written by a single Justice. If there are four dissents and you are referencing the one written by Justice Kavanaugh and not joined by any other Justice, what else would you refer to it as? When there is one dissent, you say “the dissent.” When there are multiple, you have to distinguish them. And referring to the Justice who authored it, joined by nobody else, seems the most straightforward way to do it, and it is again, to use this board’s jargon, “attacking the opinion and not the Justice.” ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 30, 2020, 10:49pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/11 "2020-06-30T22:49:58Z")
It’s so common you can cite a couple of times it has happened then, yes? Because you still don’t seem to comprehend that there is a difference between “this argument was dumb” and “this argument by **UltraVires** was dumb.” The former is very common. The latter? Well, you can show me those cites. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 1, 2020, 9:13am UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/12 "2020-07-01T09:13:19Z")
[https://www.supremecourt.gov/opinions/07pdf/07-290.pdf](https://www.supremecourt.gov/opinions/07pdf/07-290.pdf) Page 52 (of the PDF) et seq. Scalia goes at Stevens Page 63 et seq. Scalia goes at Breyer. "Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. " p. 52 Was that a “swipe”? No. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 1, 2020, 9:20am UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/13 "2020-07-01T09:20:08Z")
> [@John\_Stamos\_Left\_Ear](#): > > Because you still don’t seem to comprehend that there is a difference between “this argument was dumb” and “this argument by **UltraVires** was dumb.” I understand it quite well. If we are debating in a thread, you could say that this argument was dumb. If you take a position and three posters, including me, are arguing against you, you cannot simply say that “this argument was dumb” because there is more than one argument against you. You have to specify somehow. So if you are referring to my argument in that thread, the best way to do it would be to say “this argument by UltraVires was dumb.” Not a swipe at me. You are identifying which argument you are referring to. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [July 1, 2020, 12:33pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/14 "2020-07-01T12:33:36Z")
> [@UltraVires](#): > > "Nothing so clearly demonstrates the weakness of > JUSTICE STEVENS’ case. " p. 52 > > Was that a “swipe”? No. Huh? Sure looks like one to me. It sure reads like Scalia is saying that Breyer’s interpretation of the law is stupid–that the law cannot be read in that way. And Scalia was well known for being scathing, so that fits pretty well. Even your previous language implies this. Going at someone generally means that you’re (verbally) fighting. I actually wonder if there are instances where they more respectfully disagree, saying that their argument is partially correct, but misses something important. Or that it looks at things the from the wrong angle. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [July 1, 2020, 1:23pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/15 "2020-07-01T13:23:54Z")
> [@BigT](#): > > Huh? Sure looks like one to me. It sure reads like Scalia is saying that Breyer’s interpretation of the law is stupid–that the law cannot be read in that way. And Scalia was well known for being scathing, so that fits pretty well. I agree but I do appreciate the citation that **UltraVires** provided even if the editorializing seems biased and wrong. It also means Kavanaugh is not special, at least not in this instance. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [July 1, 2020, 4:16pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/16 "2020-07-01T16:16:15Z")
> [@John\_Stamos\_Left\_Ear](#): > > It’s so common you can cite a couple of times it has happened then, yes? > > Because you still don’t seem to comprehend that there is a difference between “this argument was dumb” and “this argument by **UltraVires** was dumb.” > > The former is very common. The latter? Well, you can show me those cites. I’m not entirely sure what you’re asking, but yesterday’s [_Espinoza_ decision](https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf) has three separate dissents and the Court’s opinion responds to each of them separately by name of the author. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 1, 2020, 9:32pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/17 "2020-07-01T21:32:26Z")
Referring to dissenting judges by name is very common in the court cases I have read. I had to double-take to make sure that’s what OP was asking about. This isn’t a new phenomenon. See for example Footnote 1 from _Griswold v. Connecticut_, 381 U.S. at 485 (1965) which calls out Justice Stewart’s dissent by name (“_My Brother STEWART dissents on the ground that… This Court, however, has never held that…_”) just like Justice Roberts did in the present case. ~Max ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [July 1, 2020, 10:52pm UTC](https://boards.straightdope.com/t/supreme-court-daca-case-john-roberts-takes-a-swipe-at-brett-kavanaugh/855925/18 "2020-07-01T22:52:57Z")
Thank you all! I am glad it wasn’t so difficult after all…