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On an article on viewpoint diversity in the Law at the University of Chicago. Sunstein Viewpoint Diversity
Growing up I believed according to American mythology that the law is blind. Everyone knows of the Blind Justice Statue of the Roman Goddess Justitia. This always implied to me (perhaps being an engineer) that the law was like math 2+2 =4. Word x+y has meaning Z. The whole idea that adding a bunch of words together lacks a definable meaning to me makes no sense. Law shouldn’t have theory. It should be math especially if it is going to be blind and not swayed by public opinion. There should be no theory involved. I guess this makes me a textualists. But it turns out at places like UC that you have 10-20 smart clusters of people who all have different solutions to 2+2 = 4.
Law being like math I believe should definitely apply to judges. Legal theory can be useful for a lawyer who works for a Senator who is writing legislation. Then legal theory has a purpose of designing the equations to get a law that does what you want.
One thing that came out of UC was applying economics to law. This again I have no problem with adding economics to new legislation you create. But from my understanding of legal history judges began adding economic tests to old law. To me this is like discovering that 2+2 had a different answer than the 4 that was a correct answer.
Once I realized the law as practiced is not mathematics I switched my judicial philosophy from some form of originalism to Ketanji Brown theory. I just want a judge who votes the way I want her to and do not care if she’s worse at arguing her theory than another guy. The best I can tell from history is that when public opinion on an issue changes the legal theorists of the smart guy at UC becomes the theory everyone else begins to quote. I prefer to just pick judges who back the policy I want in the current legal environment.
Pragmatically the law has never been blind. The criminal justice system has always judged poor dumb kids differently than rich smart kids. The same crime committed by an urban youth versus a Kennedy kid has never been punished the same way. A big reason for this is the court had a reasonable expectations that the Kennedy’s had the resources to deal with the behavior internally and society didn’t need to spend resources to make sure the crime didn’t happen again.
Thank you for the article! I quite enjoyed it. Reminded me of what Feynman wrote about great men. It reminds me of the episode "The Supremes" in The West Wing Season 5 as well. I thought your arc pretty much is the story of idealists being disappointed with reality and become a cynic. I think "Justice" with the capital J is like "Truth", it is something almost always unreachable, yet the correct thing, and the beautiful thing, is to keep striving towards it. The legal system, and as the article demonstrates or that West Wing episode dramatizes, benefits from intelligent, talented, thoughtful, experienced, and hard-working individuals with variety of viewpoints coming together to inspect problems from a variety of angles so that in the debate and discussion and verbal sparring and arguments, something closer to "Justice" can be found. At least, that's my optimistic takeaway.
Edit1: Oh man I love the clip, everyone should watch it (only 2m36s) https://youtube.com/watch?v=cYR3ZzOBg1Q
Honestly I hate this view. Law shouldn’t be debatable. It’s should be black and white. And this I think will increasingly be an issue. Sure I can nerd out and think the debates are intellectually stimulating, but at the end of the day a Dem will vote one way and a GOP the other way. You might as well just nominating Ketanjis who might write poorly but vote your way versus a Scalia. It’s basically just a super Senate. The opinions are just a game for some nerds.
A big reason we got here is because justices thought it was an interpretive game to twist some words to get the political outcome they wanted instead of calling balls and strikes.
Law is not Justice. It's about society trying its best to deliver something close to Justice. Why must law be "black and white"? Is it some notion of yours that things must be legible and understandable and if only everyone comes to the same conclusion from the same set of facts? But that isn't the case isn't even on the most mundane of things. Some people like Italian food, some don't. Some love horror movies, some don't. Some like running, some don't. Some likes this toy and not that toy. It's the same set of facts, very different conclusions. Now with matters of property and life and death, people will have very different opinions.
It's always been an issue. It ebbs and flows. People are always disappointed in each other choices and opinions all the time (religion, monarchs, slavery, race, relationship preferences, pronouns, immigration, etc.). The basis of a society is the ability to smooth out these differences OR live with each other in spite of the differences. Preferably with little to no violence.
From the same West Wing episode:
"Plenty of good laws [was] written by the voice of moderation"
"[But] who writes the extraordinary dissent? The one-man minority opinion whose time hasn't come. But 20 years later a court clerk digs it up at 3 in the morning"
Everyone has an opinion and can add, detract, modify, subtract, stimulate, influence, persuade others in society. Would I rather have a better writer and persuader in a liberal justice? Absolutely. And to be fair, Ketanji hasn't finished her term, nor has the long view of history descended after the present day has forgotten about her to truly analyze and evaluate her whole body of work. The final word has not yet been written on Ketanji, nor even a revival, as opinions turns and goes. I understand the need for answers now, immediately, full present. But look, you are here, I am here. As pointed out in a discussion last week, me, you, everybody, seems to have wildly different views. I don't know how many of us will actually influence society as a whole, but "no raindrop think it causes the flood" and "to change the world start with changing yourself" perfectly summarizes my thinking to this.
I reject your view of the world that things must be "perfect" and that "balls and strikes" can be called. Reality is way too messy and have way too many details.
Even if I came back to your analogy of how law should be like math, there are plenty of things that are "ideal" but can never be "real". For example, tangent waves, there are no real life examples of tangent waves. There are plenty of things that are modeled by tangent waves at close enough significant figures that it doesn't matter but no true always-reaching-infinite-slope tangent waves.
Or there are plenty of things in math that are "black and white" in one context, but is totally different in another. A 3-sided polygon (a triangle) can’t have three 90-degree angles in flat 2D geometry. But draw the triangle on a sphere, and suddenly it can. The context changed, and the rule broke immediately.
Also btw, did you forget the apocryphal legend of Pythagoras and the killing of Hippasus for the exposure of irrational numbers? Life is a series of games, and the game changes under your feet all the time.
I am not asking for a perfect system. The Law though is different. It’s suppose to be blind, fair, and unbiased. That’s the mythology of the law. So the idea that 10 or more viewpoints at UC exists means there is a lot of bias in the law.
We have people who are allowed to have bias in our system. Elected officials. They can of course be tyrannical. I can and other citizens can have opinions on them and their actions. They can do bad things like legalize slavery. It’s not the job of a judge to have an opinion on slavery. If the law written by elected officials says that you are a slave then a judge is required to rule you are a slave if you challenge it in court. That is black and white. The Law of the Land. We have a system for people to have bias and it’s called Democracy.
So you are asking for a perfect system? Or at the very least, that people has to perfectly attune to the textual reading of the laws? You saw in the other example https://novehiclesinthepark.com/ of how that quickly becomes untenable no? Why must we wallow in the disappointment of cynicism? Why isn't optimistic realism (or I suppose optimistic nihilism) an option for you? (You've obviously already rejected the delusional mythological idealism).
If you have a society of peoples that decided to enslave others, don't worry, there will plenty of judges who will rule slaves are slaves, and the judges that don't won't be judges of that society for very long.
In this whole conversation, I've come to realize that you have many things you consider in very black and white processes. Law has to be black and white. Democracy is allowed to be not black and white, Law is not allowed. Do you realize that in your thinking?
First, I specifically said I do not want Judges to be a perfect system. I specifically cited slavery which is not perfect for a judge to declare someone a slave. It is their role in our society.
You shouldn’t cite “no vehicles in a park” because multiple people have responded that it was EASY to understand the rule. Vehicles has a specific meaning in the vernacular. We understand what it means. (As an aside in Constitutional Law one issue is the vernacular changes on 200 year old laws).
On the point of slaves being ruled slaves I am specifically saying Judges often do NOT follow the law. You seem fine with this. I am not. This is why you like the debate societies of Westwing where the person who says the most interesting argument gets to ignore the law and just do what the want to do.
“In this whole conversation, I've come to realize that you have many things you consider in very black and white processes. Law has to be black and white. Democracy is allowed to be not black and white, Law is not allowed. Do you realize that in your thinking?”
I 100% realize that is what I am thinking. It’s black and white. People who are elected get to have biases in decision making. People working as judges do not. This is called rule of law. It’s the same as the difference between an engineer that designs trains and one who operates trains. Designers get to have biases on what they want. Conductors operate the train that was designed.
And since well the people in The West Wing did not do Rule of Law I no longer see why I should play their game anymore as a Republican. Just give me 6 SC Justices with 80 IQ who vote the way I want them to vote.
If a society democratically, representative or otherwise, legalize slavery, do you expect judges in that society to uphold such a law?
You saw the actual statistical results captured by the site right? That 20% thought a horse is not a vehicle while 80% thought it is right? That there are many things easily agreed to by a large majority, but then with differing details, quickly, opinions diverged right? Also, "multiple people have responded that it was EASY", how do you know that's not just a loud minority? Also just because the majority agreed on something, when does it become tyranny of the majority?
I would appreciate you don't draw up a straw-man of myself so you can fight. I do prefer following the law. I also do prefer judges follow the law. There are plenty of supreme court decisions I dislike but I think is following the constitutional law (for example Dobbs). What I am arguing for is that: you might think they are doing "interpretive word games", but for them, they have strongly held beliefs on how to interpret the law. You've essentially already pre-categorized any way of thinking that isn't like yours as to be "fast and loose" and therefore dismiss the end results.
Well guess what, it's because I changed my mind after listening to people who I disagree with when they make a "rational" point. I think we are similar in this seeing as we're both here, in a place where debate and communication is prized, where opinions and ideas can change. Don't you see? Debate, winning it in public, finish or re-opening a fight, everything contributes to how people will understand and apply the law, or influence how laws are written or stricken down in the future. That is the game!
This brings me back up to the very first question. If a society democratically, representative or otherwise, legalize slavery, do you expect judges in that society to uphold such a law? Is this what you expect? Is this what you want?
"Well that's just your opinion man". It's a very holier-than-thou attitude where you get to define what the "Rule of Law" is and then therefore can decide who is a cheater or not. When that's the point, the one who wins decides what the law means. Also, because if you don't persuade people but just force people, that's just plain tyranny.
I am very clearly if a country Democratically enacts slavery judges 100% have to enforce it. That’s how a constitutional republic works. You seem to disagree with this. This is why I no longer give a shit about legal opinions. You vote for judges that do what you want them to do and I want judges appointed that do what I want them to do. Judges are not the State. They don’t get to make law. They need to uphold the law as written.
My point here though when the top law schools have 10 different legal theories the system basically became figure out the result you want and then pick the theory that says your allowed to do that.
I assume you’re a Dem because West Wing is coded Dem. In the old days the Dems did what I am describing. Figure out what you want like a right to abortion or gay marriage and then pick the theory to use. Now they had smart people who wrote well but it was really bullshit. Now we’ve downgraded to not even pretending anymore. Just put the wise Latina on the court who doesn’t need to follow the law because she’s like wise or empathetic or something. Just give me based judges when the GOP appoints someone now that will do what we want.
The system is the same. Law is just politics and has been least since FDR. The general public doesn’t read the arguments anyway. If I want to bang birthright citizenship it doesn’t matter to me if we have some smart guy who digs up transcripts from the 1860’s to justify the position or some 90 IQ 25 year old whose opinion is nothing more than I don’t like Mexicans.
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If the Judges do not uphold the law, then power does not flow through the law. If the law does not channel power then it is pointless. People wish for power. To the extent that you tell them that power is channeled by law, when it is not in fact channeled by law, you are lying to them. When they figure out that you have lied to them in this way, you will lose the power to persuade them about anything ever again; if you will lie in this way, you will lie in any way.
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