The Inescapable Humanity of Law

Jefferson on Law

Legal training has struggled to buttress the legitimacy of the law as a stable source of unbiased objectivity, calming tempestuous legislatures and executive branch excesses.

At least in my legal classes, professors expressed their highest levels of praise for those judges  they saw as following logic and evidence wherever it took them with no prior doctrines nor personal preferences permitted to pollute the crystalline transcendence of the rational intellect. Constitutions exist, or so we were taught, to delimit any abuses of power that might otherwise tempt these judges were they to be tempted by the prejudices of ordinary citizens.

But this view of the law asked us all to see judges as super-human, what the philosopher Thomas Nagel would say is “the Man from Nowhere.” The man from nowhere does not approach an experience like reading case briefs with any prior preferences, aspirations, loyalties, or what Burton calls “hidden-shapers”. Even were he to possess such interferences with objectivity, she or he can set them aside in the interest of unsullied rationality.

This view of judges was shattered today in a dissenting opinion by Scalia, sneeringly attacking the 5-4 Supreme Court decision legalizing gay marriage in the U.S.  Scalia’s acerbic diatribe is most significant for its hypocrisy and its critical thinking. Many of the criticisms Scalia makes are accurate thrusts at the idea of judges as above the human fray.   Scalia refuses to see judges as the particular humans they are, each with his or her set of assumptions, personality variables, preferences and experiential histories. And he sees the majority as violating the high standards of objective rationality that he pretends to obey.        

Scalia sees the 5 judges he is attacking as arrogant, hubris-soaked, and poor readers.  To him, they use high-sounding abstractions to frame conclusions, while ignoring the true meaning of the U.S. Constitution. He mockingly and fairly, I think, points out that the abstractions on which the majority relies are ambiguous and therefore flexible cover for the formation of conclusions one intends to justify.

But the best proof of the contention that judges interpret the Constitution through personally-tinted lenses is Exhibit A: Scalia himself. Who is more arrogant and speaks with more hubris than he? Imagine the god-like intellect he must have to be able to speak so condescendingly to his colleagues about what the Constitution really said. In his dissent, one of his mocking strategies is to itemize various assumptions made by the majority and to lampoon those assumptions by laughing at the majorities claim to know such mysteries. 

When Scalia is on the winning side of BUSH v. GORE and CITIZENS UNITED, as well as dozens of decisions where the strong are strengthened, he lauds the wisdom and role of the Supreme Court. But lose, as he did today, and he sounds like a pouting lad. He tells us in his dissent that he doesn’t really care whether homosexuals are allowed to marry (sure you don’t.), but what he does care about is who rules us. He then proceeds to eviscerate the majority by labelling its behavior as an attack on the core of democracy.

Democracy, (and if we are to follow his style, we would say here “whatever that is” ) he tells us, is under attack by the undemocratic Supreme Court, who, gasp, has no members from the Midwest nor from the evangelical Christian community.  Where has this tribune for democracy been?  If he is opposed to the institution of the Supreme Court, why has he not announced that distemper before? His own legal opinions have never reflected substantive passion for democracy in any form I can imagine.

But he lost in 3 big recent arm wrestling matches. And like any losing debater, he attacks with an appeal to an abstraction.  Enter—Scalia the voice of democracy. 

Like the rest of us, he is horribly unskilled at understanding himself. And he is so very human—frequently doctrinaire, at least as doctrinaire as the majority whose pre-packaged conclusions he recognizes so clearly.

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