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« The Illusion of Partisanship on the Court | Main | The Partisan Generation's Court »
Monday
May122014

Justices and Personal Political Preference

(reply to the below correspondence)

... when a Wittgensteinian asks you what an expression means, give him an example; for that is what the point is.

I don't know what it means for a judge to "give effect to his personal political preferences." Take a look at how judges behaved when Republicans tried to suppress the vote with voter id laws during the Romney loss. Sandy Levinson was out there proclaiming the political thesis: Republican judges were going to help Romney win, because, after all, they were Republicans. It never happened. And there are countless examples of where the Supreme Court has avoided doing things to help parties win elections, even though the opening was there. Bush v. Gore was the exception. So you cannot possibly mean this. You must mean something else.

I also don't know what you mean when you say "they didn't get the law right." I mean, this is an innocent expression, but not in the sense that it now appears. Because you seem to think these recent decisions that you decry -- campaign finance, affirmative action, etc. -- could not be consistent with "the Constitution." But surely this thesis is false. Because, a man could make decisions in either direction in these cases and have them be "consistent with the Constitution." The issue is never whether they are following the law; it is only whether they are following it WELL. (This is where Wittgenstein must correct Dworkin).

And on this point -- following well -- you may have the upper hand in your criticisms. But this is not the same as saying that the decisions fail for reasons of "personal political preferences." That's just a pie that you are throwing at them. For their decisions do not fail for this reason any more than your teachings in the Academy fail because of it. No one has any choice but to follow what they believe. I happen to support Obamacare, but I would easily deny that it is because of my "personal political preferences." For surely it is not. And in cases where this would be true, what is really being said? It seems to say that the person is just being an idiot for something in the way that I sometimes support the Steelers in things that benefit them. Surely you can't be hurling this charge. I think it was Malcom Feeley who once called this sort of argument the "brain-fever thesis." 

The simple fact of the matter is that, if you are going to get jobbed by any precedent-setting court, the matter would be plainly evident in the premises set forth in the opinion itself. Nothing is hidden from you. If you would get a Marxist opinion from the Court, it would say so. Same if it were libertarian. Because that is all that this critique can ever be: descriptive, not causal. The minute you start declaring what their brains are following, you've become a partisan yourself. So just focus on the accuracy and sophistication of the arguments, not anything else. 

It never matters who wins, anyway. The only thing that matters is how insightful the opinion is. And if it fails in this respect -- objectively or convincingly -- then THAT is your critique, not that the person cheated. Every decision ever given by a judge of the Supreme Court ATTEMPTED to "follow law." The only issue is whether it was a good following. Nothing else matters.

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To: "CONLAWPROF@lists.ucla.edu" Sent: Monday, May 12, 2014 8:49 PM Subject: Re: Trivia question re: partisan splits on the Court

This kind of Wittgensteinian obtuseness (the constant "what does that mean?") used to drive me crazy when I was getting my Ph.D. in philosophy at Colorado. True, a view based on mistaken facts is a misinformed view, but that's not what the observation that judges are sometimes partisan is about. I persist in the Dworkinian (idealist) view that, more often than not, judges really are making a good faith effort to get the law right. But, as you suggest, they have different visions of how the constitution is best understood. (Think Rehnquist v. Brennan.) Sometimes, however, judges (and justices) apparently forget that their job is to get the law right and give effect to their personal policy preferences. Your not knowing "what this means" simply reveals that you are a Dogmatic Idealist (as Dworkin sometimes was); I consider myself a Pragmatic Idealist, willing to concede that sometimes judges do indeed cheat.

And I, for one, whether I am or am not a "liberal professor," do not "explain" decisions with which I disagree as being simply partisan; that's too easy and lazy. Rather, I explain them as being the product of a collegial court with good-faith disagreements about how the constitution is best understood; my disagreement with such a decision is because I believe the minority has the better understanding of the constitution. And I don't "dislike" Citizens United; I think it is wrongly decided. Or are you such a positivist that that's not allowed either?

And I have no idea what your last question means.

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