Monday, September 13, 2021

If You Have To Explain

It’s possible Earl Warren or William Douglas or Thurgood Marshall made apologies for their actions on the high court, but I’m quite certain they never hid behind labels for “judicial philosophies.” As best I can determine that practice started with the late Antonin Scalia, and he did it mostly to promote his “genius” to a credulous press. It’s no coincidence Justice Barrett is a Scalia protégé.

By “apologies” I mean "apologia," and by that I mean something beyond their legal opinions, which most justices let speak for them. None of what we’re seeing is entirely without precedent: Oliver Wendell Holmes loved the attention he got, even though it was mostly for bad opinions (legal ones, I mean). Notorious RBG relished her late years in the limelight, some now might say too much, considering who replaced her. But going out and telling people that what you heard is not what I meant? That’s very peculiarly Scalia, and now it’s Barrett.

Scalia loved to excuse his legal reasoning by calling himself an "originalist," or a "textualist."  Neither term had any meaning to anyone except Scalia, who used words according to Humpty Dumpty's rules.  I've studied jurisprudence, and while judges don't really consider themselves philosophers, some have ventured into the realm in order to find ways to explain judicial reasoning and conduct.  Learned Hand, if memory serves, wrote an article explaining what was later called "judicial realism."  Students of jurisprudence have identified a few other schools of judicial reasoning, arising from the opinions of judges, not from apologia by the judges.  Judges, for the most part, never apologize; not in the commonly used sense of the term, or in the more technical one.  Jurisprudence, like the Rule against Perpetuities or the Second Restatement of Torts, is the result of an analysis of judicial reasoning, not of judicial explanations for that reasoning.  If the judge has to explain outside of their opinions why their judicial opinions are justified, they're doing something wrong.  Either the results speak for themselves (the record of the Warren court, for example), or the results speak for themselves (the record of the Rehnquist and Roberts courts, which are hell-bent on undoing the legacy of the Warren and Burger courts).

Speaking for your results is a bit like the con man telling the rubes he didn't really fleece them; that they fleeced themselve, by being rubes.

Scalia didn't have a judicial philosophy; he had outcomes he preferred.  That didn't sound very "judicial," so he invented a philosophy that he could use to justify his more outrageous (and very personal) decisions.  But it wasn't a philosophy at all; it didn't even explain all his legal opinions, because sometimes he applied his "textualism," and sometimes he didn't.  It was a matter of whim.  But whenever he issued an opinion that had no basis in law and was just Scalia's preference, he'd wave his term around and essentially cry "King's X!"  And he got away with it because he was on the Supreme Court and who could overrule him there?

Qui custodiet ipso custodes?

Granted, that same attack was leveled against the Warren court, which issued sweeping rulings on matters affecting all aspects of American life, most of them things we now take for granted (or honor more in the breach than in the keeping).  But Scalia saw the wisdom (read:  shrewdness) in proclaiming a judicial philosophy that wasn't, because he knew reporters (including people as astute at Linda Wortheimer) didn't know beans about jurisprudence, and that he could get away with it (most law professors don't know anything about it, either.  It's an arcane subject even among them.).  The sorrow and the pity is that Amy Comey Barrett, being no better schooled in philosophy or philosophical analysis (it's not the same thing as legal analysis) than the average American, took Scalia's pronouncements as gospel, and now thinks she has a "judicial philosophy."

Scalia must be chuckling mordantly from beyond the grave at what he managed to pull off.

My jurisprudence text identifies only a few schools of jurisprudence.  The oldest and original is "natural law."  Under "Modern Legal Theories" it identifies two:  Legal positivism, and legal realism.  John Rawls' wrote A Theory of Justice, labeled by others as "political liberalism" (obviously a confusing term for FoxNews).  Ronald Dworkin was a harsh critic of legal positivism.  I mention both because they were professional philosophers, not judges, and because I used to have their books (but apparently they've been lost to the sea of time.  I can't hold on to everything).  I can't find a label for Dworkin's philosophy.  Such labels are never applied by the philosophers (Derrida never called himself a "deconstructionist," and it's too restricting a label to apply to all his areas of interest, even though he used much the same analytical approach to all of them.).  The point is, philosophers never label themselves as having a school of thought.  Hume didn't call himself an empiricist, Kant wouldn't have seen himself as an "idealist," Plato certainly wasn't a Platonist.  Labels come later, from others, if they come at all.  ("Existentialism" has been applied to everyone from Kierkegaard to Sartre to a character played by Carolyn Jones in a '50's movie; and revived today as an adjective to intensify "threat.")  But Scalia labeled himself; and Amy Barrett was fool enough to take him seriously.

Or ignorant enough of the history of philosophy, and philosophy in general.  Like I say, most law professors aren't conversant in jurisprudence, the philosophy of law.  An LLM will most likely be an advanced degree in tax law; I can't think of one in philosophy of law, although you might get it through a humanities department, where it would be an M.A. or a Ph.D.

Philosophers, in other words, don't label themselves.  Labels are restrictive and defining, and as most of the work of philosophy is definition (true going back to Socrates questioning Euthyphro). philosophers tend to resist being so easily defined as to be dropped into a category, however well-fitting it is in the sight of others.  When someone defines themself as a label, as the adherent to a "school of thought" no one else has ever heard of or had a chance to examine for a thesis, it's a "tell" that they are hiding their decision making in a "black box," to make it seem more defensible than it really is.

Amy Barrett says she is an "originalist," while she calls Justice Beyer a "pragmatist."  I know what that term means in philosophical circles, but it doesn't have much application in the field of jurisprudence.  Which means she's using the term as it is commonly understood; but one reasonably expects all judges to be pragmatic.  Those who aren't are busy bending the case before them to fit into a box they already have at hand; and while that may be an exercise of judicial power, few thoughtful jurists would call it judicious.

Among other things, "originalism" even as Barrett employs it, is a word limited only to Constitutional law.  There is not "originalism" in English common law.  It's origins can't be traced to a date certain, and the very nature of the law was to change over time to fit the circumstances of society.  A jurisprudence that denied agency to women and children (child labor laws, for example) is hardly one fit for modern times; but one could argue it is "original."  To what end, though?  It is also, as an analytical matter, little more than religious fundamentalism drafted into the purposes of the law.  And again, it applies only to the Consitution, which is treated as holy writ for reasons more of convenience than of necessity.  If religious fundamentalism is a response to this modern world (and it is), originalism is a response to the Warren court; and nothing more.  Which means it's not a philosophy at all; it's a complaint.

Don't misunderstand me; philosophies can spring from reaction to the prevailing thought of the day from which a new school springs.  Aristotle reacted to Plato as much as he merely observed; Kierkegaard was, in part, inspired to repulse Hegel (already a dead hand on European philosophy anyway); Derrida's "deconstruction" is a direct response to French Structuralism; and so on.  But "originalism" in law has no more coherent system to it than a reaction to the reasoning and results of the Warren court.  Even Scalia abandoned what few principles of "textualism" he sometimes espoused, as it was convenient to him.  Did the "Founding Fathers" really intend for Native Americans to be able to practice their religious rites in prison?  I doubt the thought occurred to them when they drafted the 1st Amendment, whose application has been profoundly altered (as well as its interpretation) by the 14th Amendment (which in part allowed the "school prayer" decision of the Warren Court), especially since they never envisioned a 14th Amendment, or the application of the first 10 Amendments to the states and not just the federal government.  Textualism and it's MO Synod cousin "originalism" very conveniently never go so far as to unwind those 19th century 14th Amendment opinions, or even to undo Marbury, itself certainly not an "original" idea of the drafters and the adopters of the Constitution.  "Originalism" applies its "standards" as it suits the occasion and, more importantly, the outcome.  As the old judge said to me in another legal setting entirely from anything that would ever come before the Court:  "We preach it 'round' and 'square.'" And he laughed as he said it.  Sometimes judges do; what (IIRC) Learned Hand first labeled the "judicial hunch" is just such preaching, ultimately.  But it's preaching concerned with doing justice; what Justice Barrett is concerned with is just protecting, and projecting, her ideology.

Do I say this simply because I disagree with her judicial reasoning?  No; it's because I think Scalia was sharp enough to know his "textualism" was all bullshit.  It was squid ink to fool the credulous (i.e., journalists, who like many think their lack of expertise is made up for by experience.  It isn't.  Do you want a trained doctor treating you, or someone who's worked with the doctor for years, but has no medical training at all?).  He was hiding his reasoning behind a cloud no reporter would penetrate, knowing he The didn't really have to explain himself (he was a Supreme Court justice; who was above him in his field?).  He just loved the attention (even RBG never really discussed her legal analytical process), and he played the role of "Smartest Guy In the Room."  If you didn't think he was, just ask him.  That he never rose to the level of a Cardozo or a Learned Hand or even a Roscoe Pound was of no matter.  Scalia longed to be another Holmes, known for his personality and turn of phrase, not for his legal reasoning (as time has passed Holmes has not held up as well in re-evaluation as many another jurist).  Besides, he knew the reporters had never heard of Hand or Cardozo or Pound, so what did he care?

As I said:  qui custodiet ispsos custodes?

Scalia knew what he was doing; Barrett, on the other hand, is a true believer.  She thinks she is an originalist, even though, if you questioned her, she couldn't defend her judicial philosophy against a first-year philosophy student.  She would probably insist that you simply didn't understand, but that you would if you just knew as much as she did.  I ran into that intellectual brick wall in law school, which professors who treated you as a benighted fool, rather than struggle to explain what they were talking about.  Kingsfield in "The Paper Chase" is the paradigm here; you either learn to 'think like a lawyer' in his class, or you fail.  It's not his job to educate you, it's your job to learn.  Likewise Barrett doesn't have to explain herself; you just have to understand.  This, for example, was apparently the best she could offer:

"The media, along with hot takes on Twitter, report the results and decisions. … That makes the decision seem results-oriented. It leaves the reader to judge whether the court was right or wrong, based on whether she liked the results of the decision," Barrett said.

"And here's the thing: Sometimes, I don't like the results of my decisions. But it's not my job to decide cases based on the outcome I want."
Now, the media and "legal" Twitter are the worst places to read about and try to understand judicial opinions.  But I've read the "shadow docket" opinion on SB 8, and especially taking into account it was issued on the "shadow docket," it is an horrifically bad decision that suspends the right to privacy which allows for abortions in all 50 states, in one state, and on no better grounds than weak procedural ones.  Maybe the Justice doesn't like that outcome, either, but her special pleading sounds more like a whine than like reasoning, legal or otherwise.

The Justice also objected that "judicial philosophies" are being portrayed in the public as partisan policics:

"Judicial philosophies are not the same as political parties," she said, noting that she identifies as an "originalist" and citing fellow Justice Stephen Breyer as an example of the other main school of thought, "pragmatism."

Unfortunately for her argument:  "Actions speak louder than words."
I understand the Justice is a religious person. Maybe that parable of the beam and the splinter would mean something to her.
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1 comment:

  1. The Thought Criminal6:39 AM

    I think Traditional Catholicism is more of a financial syndicate than a religion. That's the effect of it in real life. It's the trappings of baroque Catholicism as imagined in 1950s style "religious" TV programs and old re-runs of Bishop Sheen shows minus an actual Christian content. That's what they hate about Vatican II, it took Jesus seriously, and The Law and the Prophets. They want the Latin and incense and angels and paraphernalia without the economic justice, thank you very much.

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