(sent to law courts in response to one mark graber)

Lord Graber.

1. The "right answer" thesis is more complicated. It involves structured discretion. Dworkin said that right answers exist for judges to THEMSELVES --  meaning, in essence, that they were the product of their own considerate decision constituence. The idea is this: you develop a considerate way that the puzzle should be pieced, and this "thing" directs where the next piece goes, even when it is "hard." (Hence, writing the next chapter in the novel).

2.  It is true that "any dolt" can see that judges cannot make certain choices because of the existing state of affairs (both culturally, politically, and intellectually), but it is not true that, should those choices be made, that they would be "illegal" in the American system. They might provoke outrage, sanction, amendment, violence, a convention or even civil war -- but precisely this idea is due to the fact that they cannot be "overruled" by any other means. Hence, the loophole here is that even "wrong answers" in the Dworkin lexicon are not "illegal." (One would have to be a Blackstonian to say that a wrong answer was never a law).  

3. In this sense, whether "law" has correct answers is a language game. It does only in a sense of talking. Only where the idea means a better example of judging. All that one can ever say about Supreme Court decisions, really, is whether the casuistry is good. Whether it's a good fit in the line of succession.This is the same sort of epistemic task, I think, as asking whether the movie or novel has a proper ending. (Not by the "dolts" of course, but by the academy of the art in question. See Wittgenstein's remarks about aesthetics). [Important note: what Wittgenstein does to aesthetics is somewhat parallel to what moral philosophers like Dworkin due to morality. Neither sees the topic as "subjective" in a willy-nilly sort of way]. 

All that politics has ever been is the drama of history. One is either going to participate in it and have scholarship be for something or someone, or one is simply going to sit back and watch it.  One might be humane and the other cold. But one is also invested while the other accurate.

Regards.

P.S. Enjoyed your conference presentation.
 
________________________________
From: "Graber, Mark"
To: LAWCOURT-L@tulane.edu
Sent: Monday, June 1, 2009 8:04:04 PM
Subject: Re: "where policy is made"

A few notes on whether judges make policy.

If one is a certain kind of Dworkian, one believes that hard constitutional (and moral) questions have right answers and that justices have obligations to get constitutional questions right.  Thus, even if one assumes a moral reading of the constitution, justices in this sense have no discretion.

Many members of thepublic believe that few constitutional questions are truly hard.  Any dolt, in this view, would know that the constitutional clearly grants women the right to an abortion or obviously does not protect the right to gay marriage.  In this this, justices have no discretion, because the questions before than are usually easy to any good faith legal reasoner.

MAG