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Thursday, May 17, 2018

Introduction to Judicial Bullshit

My article, Supreme Judicial Bullshit, was just published by the Arizona State Law Journal (vol.50, p.141). Here is the adapted introduction (footnotes omitted):

According to one commentator, unlike certain political discourse, “law is the very opposite of bullshit.” To her, law is “a highly systematized structure of meaning used to evaluate the merit and relevance of facts and arguments. In that same capacity, it’s also a way of regulating which statements are valid understandings of reality or legal text and which are beyond the pale.” Yet, as I will suggest, there is no shortage of judicial bullshit.

You might think that judges, especially those with life tenure, could dispense with bullshit. There are many reasons, however, why judges bullshit, some of them quite strategic. It’s not easy for judges to resolve contentious issues that have flummoxed lawyers and ethicists for decades. Bullshit can help judges appear to address profound questions without actually staking out provocative positions. Indeed, judicial bullshit may sometimes provide the best path forward.

Judicial bullshit is often easiest to spot when judges wax philosophical; hence many of the clearest exemplars come from bioethics cases. Consider, for example, these two sentences from the U.S. Supreme Court’s joint opinion in Planned Parenthood v. Casey, which reaffirmed the fundamental constitutional right to abortion: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” If you teach constitutional law or health law, you’ve probably read this passage many times. But have you ever stopped to figure out what it means? It seems to express a lofty commitment to personal liberty, indirectly associating abortion rights with the most fundamental aspects of our humanity.

On closer reading, however, the passage makes little sense. It claims that the most important aspect of liberty is the “right to define [a] concept.” But a right to define a concept, while a kind of liberty, is certainly not “at the heart of liberty.” Governments rarely seek to limit people’s rights to define concepts. Inside your own head, you can define concepts however you’d like. Liberty is more centrally concerned not with our freedom to define concepts but with the sorts of actions we are permitted to take without interference from others. If Casey were merely about rights to define concepts, it would be of greater interest to metaphysicians than actual physicians.

And what does it mean to have a right to define one’s own concept of the mystery of human life? People are far more likely to debate the mystery of human life than the concept of the mystery of human life. Perhaps the Justices meant that we should be free to reach our own conclusions about the mysteries of life, but it would have been much more straightforward just to say that. And again, the passage concerns liberties associated with freedom of thought rather than the liberties of bodily autonomy that are at the heart of the abortion debate.

Lastly, it’s not clear precisely what “these matters” refers to in the second sentence. Presumably, these matters are existence, meaning, and the universe and not rights to define concepts of these things. Still, beliefs about existence, meaning, and the universe aren’t the sorts of things typically thought to “define” attributes of personhood. Attributes of personhood are usually qualities that entitle people to basic rights. For example, perhaps abilities to feel pain, be self-aware, or form complex desires constitute attributes of personhood. But how can beliefs about existence, meaning, or the universe (or beliefs about rights to define such concepts) constitute attributes of personhood? Surely humans with no beliefs about these things still have rights to life.

“So what,” you might say, “if the Justices would fail their Philosophy 101 exams?” Maybe the quoted passage isn’t meant to be picked apart for putative philosophical content; maybe it’s only meant to set the ambience for the joint opinion. But that’s precisely my point. The joint opinion is cloaked in philosophical language, but the authors often seem unconcerned with the truth or falsity of their statements in just the way, as we will see, philosopher Harry Frankfurt famously characterized bullshit. The joint opinion references lofty ideas without wrestling in any careful way with those ideas.

How tragic, it may seem, that the authors should get a failing grade in philosophy in one of the most philosophically rich and important cases in the nation’s history. But while it’s possible the joint opinion authors simply lacked the acumen to evaluate what they wrote or failed to carefully compose or edit their prose, the case is so important and closely-scrutinized that the failure to make clear, precise statements might have been exactly what was intended.

I will argue that, among many potentially overlapping reasons, judges sometimes resort to bullshit to: keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, seem as though their hands are tied, and seem principled rather than strategic. I make no strong claims about whether or when courts ought to bullshit, but there are probably appropriate occasions.

At the same time, bullshit lacks transparency, and we should avoid it absent good reason. The “mystery passage” above is quoted in full in hundreds of law review articles and many court opinions, including famous cases such as Lawrence v. Texas, Washington v. Glucksberg, and People v. Kevorkian. Rather than recognizing bullshit for what it is, the vast majority of these scholarly and judicial sources seem to endorse its content. They take the passage to actually mean something with genuine legal implications. Indeed, if judges believe the passage has legal implications, then in fact it probably does. But given the lack of transparency underlying bullshit, judges and scholars should pay keen attention to its use to see what may be hiding in the background.

In Part I, I discuss Frankfurt’s understanding of bullshit and illustrate possible instances of judicial bullshit in a wide range of bioethics cases, especially those decided by the U.S. Supreme Court. In Part II, I examine several potential instances of bullshit in the joint opinion in Planned Parenthood v. Casey to show the role bullshit can play more broadly in a single opinion. Casey concerns the particularly controversial issue of abortion and arguably uses bullshit to deflect attention from the thorny philosophical questions at its core. I don’t take a position as to whether the joint opinion should be applauded or condemned for its apparent reliance on bullshit, but I do highlight ways in which judicial bullshit reduces transparency in ways that may be troublesome.

The composition of the Supreme Court may change dramatically in the coming years, and many of the Court’s apparently-settled constitutional cases will reopen for debate in ways that few scholars predicted. Now is a particularly timely opportunity to reexamine the philosophical arguments underpinning those and other decisions to see where bullshit must be replaced by careful argumentation and where bullshit might be the best we can hope for.

Posted by Adam Kolber on May 17, 2018 at 01:57 AM | Permalink

Comments

Adam, how is your "Judicial Bullshit" different from Felix Cohen's "Transcendental Nonsense," from his famous article,Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935)?
http://moglen.law.columbia.edu/LCS/cohen-transcendental.pdf

From Cohen's article:

"Valuable as is the language of transcendental nonsense for many practical legal purposes, it is entirely useless when we come to study, describe, predict, and criticize legal phenomena. And although judges and lawyers need not be legal scientists, it is of some practical importance that they should recognize that the traditional language of argument and opinion neither explains nor justifies court decisions. When the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds, then the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged. Thus it is that the most intelligent judges in America can deal with a concrete practical problem of procedural law and corporate responsibility without any appreciation of the economic, social, and ethical issues which it involves. "

Posted by: Orin Kerr | May 17, 2018 2:19:21 AM

Thanks, Orin! My initial reaction is that at least some transcendental nonsense is bullshit, but bullshit isn't necessarily transcendental nonsense.

For Harry Frankfurt, what makes something bullshit (and most of this comes after the paper's introduction) is that the speaker shows insufficient concern for the truth of what he speaks. Stating, for example, that the heart of liberty is about the right to define a concept might be a candidate for the bullshit label because it's hard to believe that at least three justices and their clerks really believed that rights to define concepts about a mystery are at the heart of liberty (especially the sort of liberty at issue in Casey). It seems more likely that they just didn't pay much attention to the truth of what they were saying. But it's just a hypothesis. There could be other explanations.

By contrast, I take it something qualifies as transcendental nonsense if it speaks about matters in dispute as though they naturally fall into some abstract legal category when, in fact, assignment to the category only fits in some analogical way that hides the underlying policy considerations judges actually use to decide. So I guess transcendental nonsense could also be bullshit if one thinks that it reflects insufficient concern for the truth. (I wonder how often this would be the case.)

But there is certainly bullshit that isn't transcendental at all. For example, later in the paper, I mention a candidate bullshit statement a portion of which contains this doozy from a state court of appeal in 1969: "It is common knowledge beyond dispute that the loss of a close relative or a friend to a six-year-old child is not of major impact." The statement has no citation, is probably false as a substantive matter, and most importantly, hardly seems to qualify as "common knowledge" even if it were true. It's at least a candidate for being bullshit, even though nothing about it seems transcendental.

These are just preliminary thoughts, of course. Would have been nice had I said something about it in the paper, as both transcendental nonsense and bullshit involve ways of being less than fully transparent. Thanks again!

Posted by: Adam Kolber | May 17, 2018 3:18:14 AM

Thanks, Adam. I do think engagement with the standard legal realist literature would have been helpful, as at least at first blush this seems like ground that has been gone over many times before.

Posted by: Orin Kerr | May 17, 2018 4:47:02 AM

Adam: Without getting into an extended/boring apologia/explanation for the question I'm about to ask (such as nuancing about your acknowledged interest in neuroethics [http://kolber.typepad.com/], or comparison of your SJBS article with Cohen's TN article, or whatever, all of which are fair enough), let me just come right out and ask it:

Does your conception of "bullshit" encompass "outright deceit/lies," or does it not?

It's a fair question, because you do use limiting language in places, such as "judicial bullshit may sometimes provide the best path forward" (which, I think we can agree, deceit/lies cannot ever do).

Perhaps you could respond to my question in the context of a case-in-point?: Would you (or would you not) apply the language "bullshit" to characterize the kind of behavior (allegedly) exhibited by Judge Easterbrook, according to Prof. Alschuler's (in)famous Memoir, "How Frank Easterbrook Kept George Ryan in Prison" (http://scholar.valpo.edu/vulr/vol50/iss1/3)?

For the record: I would so characterize. To me, "bullshit" ENCOMPASSES/INCLUDES deceit/lies, while it ALSO includes other such sub-Lie things as Misdirection, Limited Response, and Unwilling to Respond (but, the latter MAY be ONLY what you mean by "bullshit," which is why I'm asking).

Cheers, and thanks for the SJBS study!

Posted by: Walter Tuvell | May 17, 2018 4:50:06 AM

The author of the post , is using with all due respect , such ugly terminology like " Bullshit " , without clearly defining even , what is the basic fundamental duty of the judge or the court :

It is not about philosophy , and even not philosophy as a tool , but :

To prevail , in certain case or dispute ( and he must prevail typically) and as possible in accordance with the law and jurisprudence. He doesn't care about philosophy , he does care about transparency indeed , but not philosophy .
For the philosophy , meant mainly to speculate about hypothetical situations or phenomenon beyond our reach and senses . But , a judge , needs to prevail , in the real world . He may sound philosophical , but , this is not philosophy .
It is about , civilized society . It is about the rule of law . It is about to serve justice . And philosophy , is hardly an apparent rhetoric tool. The author of the post , has confused, philosophy , with :" sound philosophical " looks like , read so .
So ,in the best case , it is hardly , solely, only confusing between the lawmaker and the judge . Hardly so even .

Thanks

Posted by: El roam | May 17, 2018 7:38:00 AM

Thanks, everyone.

Walter: As becomes clearer as the article proceeds, I'm not using the term "bullshit" in a colloquial sense. I'm using the term as Harry Frankfurt influentially described it. He takes insufficient concern with the truth to be its primary feature. He thinks bullshit is different from lying because the liar knows the truth and is deliberately trying to steer the reader away from it.

According to Frankfurt, bullshitters describe “a certain state of affairs without genuinely submitting to the constraints which the endeavor to provide an accurate representation of reality imposes.” Consistent with your instincts, though, in the literature that sprung up after Frankfurt's original piece, some writers have argued that bullshit does, in fact, include lying. In my paper, I try to stick pretty closely to Frankfurt's original description. But I don't defend Frankfurt's original description; I simply utilize it. Not sure that I'll have a chance to get to the memoir you cite, but maybe this clarification of Frankfurt's view helps to address your question.

Orin: As suggested in my response to Walter, what seems to have attracted a lot of attention to bullshit in particular is the idea that it's different than lying--that it carves out something of a new area of focus characterized by insufficient concern with the truth. In that way, it centers around an *attitude* or stance with respect to the truth which I take to be somewhat different that the focus of the legal realist critique you discuss. But there is a lot written on legal realism, judicial rhetoric, and so on, so I understand that saying something new and important on these topics is always an uphill battle.

I also try to focus on a particular aspect of judicial bullshit and legal scholarship that relates to it. Most of the examples I give in the paper focus on philosophical or pseudophilosophical discussion in judicial opinions on bioethics issues. It is by no means intended to denigrate the importance of philosophy with respect to bioethics decisions. Quite the opposite. It's meant to show that courts often fall flat at philosophizing and to warn scholars to look closely at judicial efforts in this domain.

El Roam: As just mentioned, the term is Frankfurt's. I borrow it because it is meant to capture an idea that is different than simply lying (whether or not one thinks it succeeds at doing so) and thereby hopefully adds something new to the debate. I'm not sure what the fundamental duty of judges is, but I think it's hard to talk about justice (which you mention as part of that duty) without also entering into philosophical territory.

Posted by: Adam Kolber | May 17, 2018 9:10:50 AM

Adam ,

Surly or rather , I was sure , and also every reasonable reader , that you weren't referring of course to lying in the plain meaning of it , but rather referring to illegitimate back minds that judges have in mind according to your post, here I quote :

judges sometimes resort to bullshit to: keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, seem as though their hands are tied, and seem principled rather than strategic ….

End of quotation :

Well , with all due respect, it is anyway offending , and doesn't reflect the real things with all due respect .

The fundamental duty of judges , is precisely what is written by me . There is no debate about it . It is typically prescribed explicitly by law , constitution and jurisprudence .

And , It is not hard at all , to :

" talk about justice ….. without also entering into philosophical territory ....."

As mentioned by you . For , if you Know something about their work and duties , you would notice that :

They get a dispute to be solved, which must be solved typically. Then they first set the procedure ( generally speaking ) . Then they observe the relevant laws and provisions . If they encounter difficulty in solving it :

They would rely upon :

Precedents , history of legislation ( intent of the lawmaker ) general jurisprudence . Sometimes International law or other national laws for comparison . And finally :

They would reach , as last resort , what may look like philosophy , but it is not . It is rather , rhetoric which may harmonize :

Moral concepts , social norms , existing laws ,all incorporated into solving a concrete dispute , which stems clearly from reality occurring frequently .

Simple illustration , by simple provision , here article 1 to the :

" foundations of law, 5740—1980 "guiding a judge so :

1. Where the court, faced with a legal question requiring decision, finds no answer to it in statute law or case-law or by analogy, it shall decide it in the light of the principles of freedom, justice, equity and peace of Israel's heritage.

End of quotation :

So , clearly you can read the hierarchy of the thinking or process. And this is , for the most difficult cases of course.

Thanks

Posted by: El roam | May 17, 2018 9:54:44 AM

Just clarification :

The law mentioned ( " foundation of law " ) is an Israeli law of course .

Apologizing ....

Thanks

Posted by: El roam | May 17, 2018 9:58:07 AM

Another clarification :

Recently , the law mentioned , has been amended , but , there is no need to dig deeper into it .

Thanks

Posted by: El roam | May 17, 2018 9:59:42 AM

So can I push back on your claim that that passage is bullshit? In Roe, the Court wrote that states couldn't ban abortion "by adopting one theory of life." Their reasoning, surprisingly, was that the correctness of that theory of life was unclear, as an empirical matter; "at this point in the development of man's knowledge," it couldn't be said with confidence that human life began at conception. We only had "consensus" that viable fetuses were human life.

Now, I've always had two problems with that. In the first place, I don't see why life has to be human in order for protecting it to be a compelling interest. If a state thinks dogs are special, as most do, it can assign, in my view, compelling value to dog life, even though that might impinge on constitutional rights (as in Lukumi Babalu Aye). So if a state finds fetal life compelling, though it acknowledges that first-trimester fetuses aren't humans, I don't see the problem. Second, and relatedly/more broadly, I don't think there is a fact of the matter about when human life begins, or the moral worth of first-trimester fetuses or dogs; the value people assign to different forms of life is just a matter, in my view, of sentimental choice. So to complain we don't "know" yet whether first-trimester fetuses are equal in worth to postnatal people is confused; we'll never know because there is nothing to know, though we might reach some sentimental consensus on the matter, as we've largely done in this country with dogs, that the law could treat as if it were a moral truth. At least in the absence of consensus, though, a state can't be wrong on this subject and the Court is in no position to gainsay its belief and its citizens' belief that fetal life is compelling. More generally still, the Court's in an okay position to decide whether means, like diversity on college campuses, are compelling, because there is some fact of the matter about means' instrumental worth, but it's in no position to decide the value of ends, like fetal life, because there are no facts about their value.

Now, all that obviously sounds in a controversial and crude moral anti-realism that I lack the wherewithal to defend, but what I want to say in defense of Casey is that there are two possible upshots of this kind of view. You could say, with me, that since there is no truth of the matter about whether fetal life is compelling or not, states can choose to assign compelling value to fetal life without correction from the courts, just as they can choose to harshly and more or less arbitrarily punish people for killing members of certain non-human species but not others. On the other hand, you might say that the freedom to choose (and act on) conceptions of human life lies with the individual. Since the state can't claim its conception is factually correct, as none is, or that it's even supported by a universal or national consensus, it shouldn't, one might argue, be able to impose its conception on individuals who don't agree with it, anymore than it can punish its citizens for not being Republicans, or for engaging in homosexual intercourse in contravention of a state's preferred sexual ethics. On this view, laws imposing vegetarianism on a state's citizens would likely be unconstitutional; people would have, the argument would go, the freedom to make and act on their own sentimental moral judgments about the value of animal life relative to our own. The proper objection on this view to such laws wouldn't be that we don't know that animal life is compelling, but rather that absent consensus on whether it is the choice of whether to assign compelling value to animal life is a matter of individual liberty.

Now, the Court's statement of this view may be infelicitous, as much of its author's writing is; so may, of course, this comment. But I'm not bullshitting and I don't think they are either; the infelicities (why reference to the universe, or existence?) are just clumsy infelicities, not indications that they don't mean what they say or don't care if it's true. And the central conceit, the right to define one's own moral concept of human life, seems much more serious to me than you say; I don't agree that it's far afield from the issues of bodily autonomy that the case is "really" about, as the central question in the case is whether states may impose their particularist view of when human life begins on their citizens and thus overcome their rights of bodily autonomy, or whether they can't. (That there are such rights is a given in this argument, and I think a reasonable one; do critics of Roe or Casey really think that states could constitutionally make women have a certain number of children?) I understand your taking issue with the elision between the Court's claim that there's a right to define human life and their claim that there's a right to act on that definition, but (a) it makes more sense if couched in terms of a negative right to be free from a state-imposed definition, and (b) I don't find the elision that problematic. Perhaps the Court is positing something like a secular freedom of religion as to profound and disputed moral questions, and in religion, one doesn't draw these sharp lines between freedom of belief and the freedom to act on it.

Posted by: Asher Steinberg | May 17, 2018 11:54:08 AM

Casey's philosophical purple prose, if one wants to phrase it that way, can be defended. The specifics is more complicated, of course, and is done elsewhere. "BS" is by one definition the lack of respect for truth, to the degree of not caring if a statement is true or not. The text is not that.

"At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

A basic point here to me is the "universal truth" aspect of religion as that term is sometimes defined. Banning abortion choice at some point at least (moving past poetry, the case turns on weighing different things, as law does) turns on selecting one of a multiple possible views on when "life" exists, that is life of a certain sort that warrants protection.

Such things in this country is an important matter of individual liberty. "Life begins at conception," e.g. is not cited as a scientific fact in these debates alone. It is tied to a higher meaning than that. And, if one point is selected here arbitrarily, there would be some "compulsion." This brings forth a free exercise type claim. If people were forced to go to mass, their "concept" of mass will likely be affected. Going to mass would be more likely to be seen as "correct" and "obligatory." People's beliefs are influenced by physical obligations.

This is merely a rough taste of what I see behind the phrase. It is not "bs" any more than other rhetorical flourishes about various constitutional principles. If we want to be literal, talk about free speech will seem like "bs" since it sounds like no limits are allowed when obviously limits are allowed and the word choice needs to be understood by the body of work of the law as a whole of the case.

Posted by: Joe | May 17, 2018 1:03:43 PM

Re: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

I’ll attempt to make sense of (some would say ‘unpack’) this passage (which may require more than the principle of charity!) without suggesting it adds up to the qualities we look for in a good legal argument, in particular with respect to a legal right to abortion. However, presuming we might make sense of this passage, it may be then be possible, by an admittedly circuitous or long route, to arrive at premises useful for making the requisite legal arguments.

Perhaps what is being said here—even if somewhat awkwardly or obliquely—amounts to a descriptive reference to the facts of (religious and non-religious) worldview (and, at the level of the person, lifeworld) pluralism, a condition in which people hold views (in toto, more or less conscious, consistent, coherent, rational, reasonable, and so forth; in other words, the worldview may provide perspectives ‘more like a collage than a Canaletto’) that are central to our sense of personal and collective identity. Hence, for example, questions as to what point in time an embryo or a fetus becomes a “human being”(and thus deserving of all the care and consideration accorded same), or to what extent the life form developing in the uterus of a pregnant woman is thought of as “hers”(intrinsically part of her body), or in some sense independent of her, or how we should we should understand the “morality” or ethics associated with “destroying” an embryo or “killing” a fetus, are questions the “answers” to which will vary according to one’s particular worldview, and thus one’s views on abortion will be largely determined by one’s lifeworld, as beliefs in whole or in part and directly or indirectly derived from a worldview (or the worldview may simply and inexplicably motivate one’s intuitive or somewhat inchoate beliefs about such matters). Thus the liberty in question has to do with one’s freedom to form one’s own conceptions on and about such matters (as Christians, Hindus, Muslims, ‘Know-Nothings,’ Humanists, what have you: e.g., your lifeworld may be a hodgepodge or, like the Dalai Lama’s, part Marxist and part Buddhist) and the conceptions one arrives at are therefore not necessarily “just in one’s head,” but may come with direct or indirect implications “for the sorts of actions we are [morally or legally] permitted to take without interference from others.”

We have, therefore, a liberty to form what is, for us, a more or less articulate conception of a worthwhile life, or simply what makes our or a life valuable or worth living, as we say. To do this, of course, presumes we have access to the various kinds of material and psychological resources (basic physical and mental capacities and capabilities, a certain level of health, a certain amount of education, and so forth) that make this possible, and thus we need a degree of personal autonomy or freedom which makes for basic or minimal normative agency or “personhood.” Here personhood is used in a normative sense, and thus it is not equivalent or reducible to what it means to be a human being simpliciter but is being used in reference, in the first instance, to our capacity for intentional, responsible agency. Here personhood is often bound up with notions of human dignity, of being taken seriously or with respect, as well as the capacity for self-definition and self-defining choices. In this case, our personhood makes reference to a “self” in which aspects of the person are presented to one’s own mind in the form of what David Velleman has termed “reflexive guises” (in or with which we fashion ‘self-images’ that may, so to speak, serve as self-fulfilling prophecies; in or with which we are able to make the psychological connections whereby past and future ‘selves’ are accessible to reflexive thought and essential to personal identity; and, in or with which we develop a sense of autonomous agency). This, among other things, is what enables us to distinguish human beings or human animals from nonhuman animals on the one hand, and, say, robots (or zombies) on the other. Thus human beings are unique insofar as they eventually can or should develop the capacity or ability to “interpret and modify their agency through their conceptions of themselves.”

And so, our capacity to have worldviews (with a particular cluster of beliefs, values, etc.), individuated as a “lifeworld” (meaning it may more or less deviate from ‘official’ worldviews and thus have idiosyncratic elements), is part and parcel of what it means to be a person, as distinct from a human being, hence to have personhood. So, human beings as such, in other words, those we want and hope to develop the capacities we associate with personhood, possess “rights to life” (and, as one ages, the whole panoply of civil, political, economic, social and cultural rights), indeed, it is precisely such rights that set the conditions of possibility for personhood, for creatures that historically have learned to cherish and make meaningful (or implement) the right(s) to life in the first instance, and the myriad rights that follow therefrom. Personhood, on this account, is thus a developmental achievement, for it emerges, as it were, from the causal capacities and potential of the human being (not in any deterministic sense, as it depends on a nurturing or facilitating environment).* The capacities and powers of a human being are what used to—and I think still should—fall under the concept of human nature (see P.M.S. Hacker’ three books on this**), and our notion of personhood thus builds upon this as a necessary condition. In other words, “beliefs about existence, meaning and the universe” are not essential to our definition(s) of a human being, but make indispensable reference to our capacity or ability to form such beliefs, which have come to be seen as intrinsic to our concept and conceptions of personhood (as existentialist, humanist, and psychoanalytic psychologists will attest). Having reached “the age of reason,” the stage is set: an inability or refusal to, or simply the neglect to deal with questions of (the) “meaning” (of life) typically has all sorts of negative ramifications for one’s mental health and well-being. Human beings that achieve personhood, are involved in a search for meaningfulness, have the capacity to determine the conditions for self-fulfillment.

Perhaps the resort to something philosophical or philosophy-like in this judicial opinion amounts in this case to a form of judicial self-deception or evasion, to Sartian “bad faith,” or even “bullshit,” but I’m inclined to give the two sentences in question the presumptive benefit of doubt, In short, I don’t think the justices responsible for the opinion were being careless with the truth or giving expression to judicial bullshit, where “to bullshit” means to be careless with the truth:

“The bullshitter is different from both the liar and the sincere person in that he intends neither to say what he believes (even if he does) nor to hide what he believes (even if he does). He is just not interested in the way things are—in the truth. He is interested in other things—power prestige, being titillating or convincing.” (Michael P. Lynch discussing Frankfurt’s conception of bullshit)

* One plausible if not persuasive treatment of this idea is found in Christian Smith’s book, What is a Person? (University of Chicago Press, 2010).
** Human Nature: The Categorial Framework (Blackwell, 2007), The Intellectual Powers: A Study of Human Nature (John Wiley & Sons, 2013), and The Passions: A Study of Human Nature (John Wiley & Sons, 2018).

Posted by: Patrick S. O'Donnell | May 17, 2018 1:43:39 PM

erratum: ...Sartrian “bad faith,”...

Posted by: Patrick S. O'Donnell | May 17, 2018 1:50:45 PM

Asher: Thanks! I probably can't do justice to your whole comment, but I think this part is key: "I understand your taking issue with the elision between the Court's claim that there's a right to define human life and their claim that there's a right to act on that definition." If I were a philosophy professor grading an eighteen-year-old's paper on abortion in Philosophy 101, I would be alarmed if the student wrote that the heart of liberty in the abortion context is about a right to think a certain way rather than about a right to act in a certain way. And this isn't a Philosophy 101 class, but one of the most important bits of applied ethics the legal domain sees each century.

I do think your comments fill in some context in a way that makes the passage seem a bit less out-of-left-field. As for whether or not the passage is bullshit, it's just a hypothesis. It's very hard to say. One issue that I wrestle with a bit in the paper is that Harry Frankfurt only describes bullshit in the context of a single speaker. He really says nothing about speech that is the product of multiple authors/editors/clerks and that goes triple when we're dealing with a plurality opinion like this one. It seems possible, and even likely, that not everyone who tweaked or signed off on the language in the mystery passage have the same relation to the text. So to the extent the language is attributed to multiple authors, it could be bullshit with respect to some but not others.

Joe: Some of my comments to Asher may respond to yours as well. There's a difference between saying that you can't think about concepts the way you want to and saying that the state can limit the way you act on your beliefs. You make fair points that what some might consider bullshit, others might treat as mere rhetorical flourishes. But taking up your example, it seems quite problematic to me if courts speak about "free speech as though no limits are allowed when obviously limits are allowed." There's something non-transparent about it. To the extent that mind reading is difficult, there may be times when it's hard to distinguish bullshit and mere rhetoric, but I suspect that at least some of what we call rhetorical flourishes are, at the same time, also bullshit.

Posted by: Adam Kolber | May 17, 2018 1:51:45 PM

The passage also shouldn't be taken out of its context.

It is, e.g., at the end of a discussion that begins "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." Various decisions are covered there including Meyer & Pierce, which compared our sense of liberty to (I'm sure open to debate) summaries of certain type of Greek views of the a person's place in the state.

The passage is followed by this statement: "These considerations begin our analysis of the woman's interest in terminating her pregnancy, but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise."

It then talks about abortion in particular. Again, I'm sure the summary it provides -- merely a summary of an area that lots have been written about on all sides -- but it adds context to the "mystery of life" passage.

I think it is fine to push back on what exactly the phrase means and some legal opinions leave things unsaid to some degree. But, that isn't exactly the same as "b.s." and reading about this subject for quite some time, I think the summary is far from that even if Kennedy at times is better at flourish than totally fleshing it out.

Posted by: Joe | May 17, 2018 1:55:05 PM

Thanks, Patrick and Joe. Note that Patrick was able to write almost 1300 words to describe the two-sentence passage. This suggests to me that it's quite open to interpretation and not very transparent. Were I concerned with speaking the truth, I would have been more careful. But to be sure, calling it bullshit is just a hypothesis.

Part of the hesitation people may be having to labeling the passage bullshit (and they should have some hesitation to be sure--again, just a hypothesis) is that they think bullshit is bad. And maybe it is. But, as I discuss in the paper, it may have its uses. It's an interesting exercise to try to sharpen up the mystery language. Some efforts to sharpen it up, it seems to me, make it more controversial. And the effort to avoid controversy may play some role in the language chosen.

Posted by: Adam Kolber | May 17, 2018 2:41:56 PM

hey dear adam, just a quick note that i downloaded the article and plan to read! miss you friend!

Posted by: Orly Lobel | May 18, 2018 1:44:52 AM

Dear future guest bloggers, please don't use this forum as a vehicle for shilling your latest article. And dear future articles editors, please do preemption checks.

Posted by: AnonProf | May 18, 2018 9:20:38 AM

I, for one, am happy and thus grateful to learn about articles from those whose work in the past I've found interesting, or on topics about which I might learn something or need to be better informed. Law blogs such as these routinely perform this function, indeed, have long done so, and with ample warrant. Everyone is perfectly free to ignore material they are not interested in. To describe this practice as "shilling" is inaccurate and rather absurd.

Posted by: Patrick S. O'Donnell | May 18, 2018 9:33:10 AM

AnonProf: I like when Prawfs bloggers discuss their academic work. It's a big Internet, though, so to each his own. Regarding preemption, I can't really respond to an allegation like that. Orin saw a connection with the topic of transcendental nonsense and then I had the opportunity to explain pertinent differences. If you feel miffed that I ignored something that I should have identified, by all means, give me an opportunity to respond or to give proper credit where it is due but was inadvertently overlooked. Indeed, that's one of the opportunities that arises when bloggers discuss their recent articles.

Posted by: Adam Kolber | May 18, 2018 9:33:18 AM

Thanks, Orly! Miss you, too. Please send my best to all the USDers, and congrats on your book!

Posted by: Adam Kolber | May 18, 2018 9:34:29 AM

"If I were a philosophy professor grading an eighteen-year-old's paper on abortion in Philosophy 101, I would be alarmed if the student wrote that the heart of liberty in the abortion context is about a right to think a certain way rather than about a right to act in a certain way." Don't be alarmed. The justices in Casey, in their infinite wisdom, chose not to reduce this particular constitutional protection to the mere action of having an abortion. Here, the freedom to subscribe to a particular belief system leads inexorably to the protection of the action that relates to that belief. If the State were free to define an embryo as human life, then it would be nearly impossible to morally justify keeping the act of abortion legal. So that's why Casey says the freedom to define whether an embryo is human life cannot be usurped by the state. I'd expect anyone taking Philosophy 101 to understand this connection between thought and action.

Posted by: Anon | May 18, 2018 2:13:00 PM

Anon: The issue isn't whether there is some way to make sense of these two sentences. The issue is how clearly those two sentences reflect their meaning to readers. Their meaning may be clear to you, but they may not be so clear for others. (And then there are further questions about why the meaning is not so clear, whether that's a good thing or not, what might have motivated particular formulations, and so on.)

Posted by: Adam Kolber | May 18, 2018 2:48:51 PM

"was able to write almost 1300 words to describe the two-sentence passage"

He has a special talent in that respect but people can write long essays about many brief passages that are not "b.s." It is -- like many well known passages from court opinions -- a basic general statement of principle that only gains specific meaning by fleshing it out in actual cases.

My comment as to free speech might have been misunderstood. My reference is to comments that cannot be taken literally. Parlor games can be played for such passages by those who do, but that is more the fault of the player than the passage. As I noted, the passage is not a stand alone.

As to b.s. being bad, the term is usually negative, but per a book that discusses it by Laura Penny, it does have certain uses like polite social graces. But, I don't think the passage is "b.s." at any rate. Like Scalia sneering at Kennedy in Obergefell, it does require one to think about what is being said, again somewhat poetically (as some justices use language), and people have shown there is substantive content there.

Posted by: Joe | May 18, 2018 5:45:21 PM

I enjoyed this post seeing how many times the word bullshit could be used. It's like those preachers that say "God is tired of your shit" all the time (He is, incidentally).

Anywho, I appreciate a post/article that's not afraid to pull any fucking punches and just talk about shit the way it fucking is.

Posted by: YesterdayIKilledAMammoth | May 18, 2018 6:50:30 PM

Thanks, Joe, for the clarification, and thanks YIKAM for the support!

Posted by: Adam Kolber | May 19, 2018 4:04:42 PM

By using the intentionally inflammatory term, "bullshit" you turn off a lot of potential readers. I, like many, resent being bombarded with your foul language. Perhaps you had something substantial to say, but the way in which you said it was extremely off-putting.

Grow up.

Posted by: Phil | May 19, 2018 6:34:40 PM

Phil: A few decades ago, philosopher Harry Frankfurt used the term to describe a particular phenomenon. Since then, a significant literature has grown up around it. It would be inappropriate to discuss the phenomenon in a scholarly context without connecting it to his work.

I understand, though, that people vary in their sensitivity to the language, and I'm sorry that it put you off. At this point, I expect to have *maybe* one more post on the topic or maybe none. My blog posts are likely return relatively soon to their usual mix of topics to the extent I still have more posts to write.

Posted by: Adam Kolber | May 20, 2018 4:36:25 AM

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