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Friday, August 03, 2012

What Do You Mean "We?"

At the VC, Ilya Somin has a post, building on something published at Reason, discussing the "top ten libertarian Supreme Court decisions." He offers some criteria, suggests a list of his own, and closes with this: "Whether you agree with my particular picks or not, the more important point is that we need to be more rigorous and systematic in our comparative evaluations of Supreme Court decisions." 

On the Internet, it can be tough to distinguish between sincere and disingenuous and/or sarcastic questions. Let me be clear that I'm actually being sincere on this one: I find Ilya's last sentence kind of ambiguous. (I find the idea of "libertarian Supreme Court decisions" a little ambiguous too. But I assume it means "Supreme Court decisions that libertarians find consistent with and pleasing to the current prevailing of their views.") Does "we" mean libertarians, or everyone? Does he mean that we need to be more rigorous and systematic in the comparative evaluation of Supreme Court decisions in general? Or that we need to be more rigorous and systematic when constructing "top ten" lists of this kind? Or just that libertarians in particular need to be more rigorous and systematic when constructing their own top ten lists?

Nothing of cosmic significance turns on this, but I found it interesting because it affects whether any of this can reasonably be said to be "important." I think the criteria that Somin proposes for identifying the "best" Supreme Court decisions can be applied by non-libertarians in making their own lists. (I say "best" rather than "most important" or "most influential" because Ilya's criteria include that the decision must have prevented "large-scale injustices" and that it be "legally correct.") So perhaps the best reading of that last sentence is that "we" means everyone, not just libertarians, and that everyone needs to be more rigorous in making their best-of or worst-of lists.

Given the overall focus of the post and the use of that slippery "we" pronoun, however, he may simply mean "libertarians." If that's so, it's a lot harder for me to figure out why it's especially important to come up with rigorous criteria for identifying the top ten Supreme Court decisions pleasing to contemporary libertarians. If the activity itself is unimportant, does it really matter? I suppose one value of doing so has to do with the much-discussed question of canon formation. To the extent that canons help influence our understanding of history and our shaping of values, there may be some value in doing so, and doing so rigorously. But without wanting to be too dismissive of libertarianism as such (it has certainly captured the allegiance of an ever-larger percentage of the students in my con-law classes at schools across the country), it doesn't seem to be a terribly important activity, any more than compiling a list of the top ten English pastoral symphonies, or the the top ten Fourierist Supreme Court decisions, or the top nine members of the Fellowship of the Ring in descending order. More of a parlor game, really.

Even if we take the broader meaning of "we," which I'm inclined to do, I still tend to question the value of this kind of top-ten-list enthusiasm. (Which is hardly limited to libertarians or lawyers, of course. The standard liberal trope on the Supreme Court canon is that "respectable" lawyers are supposed to love Brown and hate Lochner, which also seems silly to me.) It's not really quite the same as canon formation, I think. Sound canon-formation, in my view, has as much or more to do with what is important and influential than with what is "good" or the "best." Although all canon formation is necessarily partial, ideally it should not be emphatically and narrowly partial. It should be a question of what's worth talking about, not who is on or off the team or what is "legally correct." In that sense, a well-constructed canon should include the anti-canon.

Hey, it's Friday, and it's the Internet. No big deal one way or the other, and I'm not trying to be especially barbed about the matter. I just found the ambiguity interesting, and was also interested in what the whole conversation says about our penchant for making lists, especially of the "top ten" variety. It's not a uniquely American pastime, I'm sure. But it sure is an oddly popular American pastime!    

Posted by Paul Horwitz on August 3, 2012 at 10:43 AM in Paul Horwitz | Permalink


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I am very impressed to watching your KEYWORD. That is very authentic & fantastic.

Posted by: online todo list | Aug 12, 2012 9:23:03 AM

Thanks, Ilya. Again, I hope I didn't come off as disingenuous. Best, PH

Posted by: Paul Horwitz | Aug 4, 2012 10:17:43 AM

FWIW, I have responded to this post in an update to mine. The broad meaning of "we" was indeed the one I had in mind, though I also wanted to single out libertarian lists specifically, because I'm more familiar with the few libertarian lists out there than with the much larger population of other lists.

Posted by: Ilya Somin | Aug 3, 2012 12:38:57 PM

I have a related post from last year on our penchant for "rankings" (one kind of list) here: http://www.religiousleftlaw.com/2011/03/rankings-ad-infinitumad-nauseam.html

Posted by: Patrick S. O'Donnell | Aug 3, 2012 10:51:55 AM

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