Essentially Contested America

Just when some influential scholars are championing the idea that not all the members of the Court should be lawyers, Chief Justice Roberts embraces the view that it would be good for all the members of the Court to be former federal appellate judges. For the first time in American history all Supreme Court Justices had been federal appeals court judges. Prior to this questionable development ‘the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science.’ But the new composition of the Court has seen ‘the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?’ According to Roberts, the result is ‘a more legal perspective and less of a policy perspective.’ In the erroneous jargon of the day, the Court now interprets the law rather than making it. Can this be right? The Chief Justice is oblivious to the possibility that the more narrowly defined criterion for Court membership the more likely the Court will become committed to a perspective unreflective of the concerns of ordinary Americans.  Without such a perspective, Supreme Court arguments are destined to mimic arguments over how many angels fit on the head of a pin. As Adrian Vermeule explains, “[o]n epistemic grounds, sensible institutional design demands a modicum of professional diversity among the arbiters of the law. None of this requires us to impugn the motivations of lawyers or of the Court’s members.  It only requires a willingness to see the epistemic benefits of professional diversity along with other types of diversity.” Adrian Vermeule, Law and the Limits of Reason 23 (2009). Epistemic diversity, in this passage, refers to the idea that law, as reflective of society in general and the different categories of knowledge in American society in particular, requires different methods for deciding complex and stylized conflicts in practical reasoning. Consequently, “the basic suggestion is that it is bad, on epistemic grounds, that all of the Supreme Court’s members are lawyers.  Nothing in law or elsewhere requires this, and in a world of substantial common-law-making by the Justices (both in nominally constitutional and in nominally statutory cases, it is a bad idea to have all the Court’s membership drawing upon the same, highly correlated sources of professional training and information.” Id. Since constitutional conflicts typically involve philosophical, political theoretic, historical, and sociological issues, confining the qualifications for judges to a narrow, legalistic domain seems ab initio, a bad idea.

The Chief Justices’ perspective derives from an ill-advised commitment to the discredited dichotomy between law and politics. Roughly, law is neutral, impartial, and requires an autonomous, independent epistemic base, while politics concerns contentious policy conflicts reflecting only the values of political partisans.  Together with this failed dichotomy Chief Justice Roberts’ view depends upon a tendentious dichotomy between fact and value. See Hilary Putnam, The Collapse of the Fact/Value Dichotomy and Other Essays (2004). In this view, facts are objectively verifiable while values are subjective and relative. Both the law and politics dichotomy and the fact/value distinction rest on failed jurisprudence and a troubling ontology. Building these elements back into the jurisprudence of the Court will create either a Frankenstein monster of judicial tyranny or a Court irrelevant to American controversies, or in different cases, both.  This Chief Justice’s recommendation to return to some halcyon era where judges perform like baseball umpires will continue to exacerbate the anomaly of a life-tenured, unelected Court running roughshod over a republican democracy. Since amending the Constitution through Article V is so difficult, a Robertsian Court can permanently thwart the reflective judgments of generations of majorities. American deserves better. Click here for Roberts on judges as umpires.

This entry was posted on Tuesday, February 17th, 2009 at 8:42 am and is filed under Constitutionalism, Philosophy, Political Theory, U.S Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.