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« Wittgenstein On Philosophy | Main | The Failure of The Politics of Law »

Why Aesthetics Matters More Than Politics

(replying to the below mail)


Thanks for your suggestion on the tone of my compositions. But I'm okay with them and won't be changing anything. Here is the labor I have done for your mail:

1. Chapter 7 of the Flexible Constitution provides a conceptual framework for how to regard the judicial decision. I list specific criteria. You can further consult this web resource on connoisseur judgment: (click "Full Size" above each slide to hear it play in flash).

2. This way of looking at the Court is far superior from the political thesis for numerous reasons. The first is that the political thesis is never falsifiable. The people who advocate for it (like Sandy did) do not make it circumstantial: that, e.g., justice X was ideological, while Y was not. All of them have "high politics," as the lawyers say. This is how they want to color the perception of the Court. Many scholars in political science who rely upon mathematical models do not even look at the actual opinions. And they consider centrists to have "center ideology." So, however you vote is your ideology; there is no way out from under the umbrella. In fact, this critique merely degenerates into a way of speaking.

2. Your instinct about "ideology," however, seems more rational. It is similar to a paper I did in 2007, here: In it, I reached the conclusion that, indeed, charges of ideological judging could only ever be understood as hidden allegations about the unethical way that a judge might behave toward legal propositions. In short, it was always an ethical critique that was simply being handled poorly. 

3. On your free speech example, several things concern me. If a judge makes the law a sham -- if he or she blatantly double talks -- this would be plainly evident. Nothing would be hidden from us. But it is more likely that the justice will try to distinguish the situation. In that case, whether the distinction is problematic is going to a matter for the activity of critical discourse.

Now this is very important. If you are successful when indicting the distinction -- and if reasonable minds agree -- there is no need to go any further with the matter. Showing that it has poor insight or is poorly informed is much more damning than showing that it is also, e.g., conservative. Or that he is. And showing that a justice has been ridiculous with the law is far more damning than picking on his political views. This is because there is nothing wrong with "being a conservative" when you are intellectually sophisticated and are giving good reasons.   We don't care that he's conservative; we only care that his thinking not be poor. 

A good example of this is Scalia with gay marriage. If you look at his views, they are so "out there" that it seems almost comical. When the issue is gays, the guy is a cartoon. Take a look at these, and compare them with Alito's view (expressed in oral argument):

In this situation, our conclusion is not that we caught Scalia expressing conservative ideology (which is neither here nor there). It is that we caught him giving an opinion that seems more like those found on the A.M. radio rather than an elite judicial institution. The character flaw here is what produces the poor intellectual effort. It's similar to the difference between justices Field/Bradley/Swayne in Brandwell versus the majority. See:

And so, the political thesis is not what is of concern. The concern is how well justices think and whether the thinking can be better. And if it cannot -- if it is reasonable disagreement -- we would not care the slightest that it was left or right. Or who appointed them. Or how they voted in the presidential election.   

----- Original Message ----- Sent: Wednesday, May 14, 2014 8:19 PM Subject: RE: partisan splits on the Court


Could you briefly provide a concrete example of "deficiency" or define the concept further? And then explain how use of that concept to evaluate judicial outcomes/reasoning is "falsifiable" in a way superior to using any of the concepts you find inadequate or misleading?

It strikes me that an academic conclusion that a judge is acting in a "partisan" or "political" or "ideological" way is driven, at least in part, by a conclusion that the judge articulated a position that is "deficient." For example, if Justice X were to argue for the free expression rights of group Y and, in a later case, against the free expression rights of group Z, and there appears to be an inconsistent application of doctrine in the two cases, would you call that "deficient"? If so, we might attempt to understand the reason why the judge was "deficient" in arguing his/her position by looking at how the outcomes match with his/her stated preferences outside the courtroom. That does not strike me as a normative conclusion, but an empirical conclusion (from which people may draw normative conclusions, but still).

My apologies if this inquiry and my example are simplistic, but I am struggling to discern if you are really getting at a method of analysis distinct and superior to the mainstream methods of analysis, or if you are captured by your own 'ideological' presumptions.

Best, Jim

p.s. Your insulting tone is unnecessary.

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