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Friday, January 17, 2025

Polarization, and what to do about it

This is the third post in the series from Chad Oldfather on his book, Judges, Judging, and Judgment.

                In my last post I outlined the diagnostic portions of Judges, Judging, and Judgment (use code JJJ2024 for a discount). The problem, as I see it, is not just polarization, but that many of the mechanisms that have traditionally served to channel judicial behavior toward adherence to law (again, however we might conceive of that) have weakened. The result is more space for the operation of the sorts of influences—usually imagined as raw politics--that we’d prefer to shield against.

                So what do we do about it?

                One answer is methodological. Proponents of textualism and originalism claim that both have the virtue of pointing judges toward a fixed target, and that by deeming certain sorts of evidence and arguments to be presumptively out of bounds they can prevent judges from, as the claim is often formulated, doing whatever they want. (There are other arguments as well, but I’ll pass over those here.)

                But of course, language can never fully specify how it applies in all situations. Original understanding, even when it can be discerned, will likewise be incomplete. Usually figuring out what the text means, or what the original understanding was, involves the application of professional judgment. There’s an additional step—which also entails the exercise of judgment—required to get from whatever it is that the text or the original understanding might yield to a conclusion about how that should be applied in each case. Sophisticated proponents of these methodologies acknowledge this.

                There are at least two problems. One is that the larger discourse about judicial methodology glosses over the need for judgment. Adherents present the process as algorithmic. “We” are constrained; “they” are just making it all up. This feeds into a dominant cultural taste for the tangible and quantifiable. Ours is a world that craves metrics and distrusts expertise. “I know it when I see it” is an epithet, and our culture sweeps aside notions such as Michael Polanyi’s “we know more than we can tell,” Wittgenstein’s “imponderable evidence,” and Karl Llewllyn’s “situation sense.” Yet I think we all, in our daily lives, have experience to the contrary. Over the course of my half-century plus on this planet I’ve met people whose instincts, judgment, and situational feel I rate very highly, and those for whom the opposite holds. My sense is that those assessments are not unique to me, and that my peers in the relevant context would generally agree on who it is they’d consult in difficult situations. The correlation of these assesments with raw intellectual power, the possession of abstract knowledge, or the holding of any sort of political views is well short of perfect.

                The second problem is that, as Richard Fallon among others (including me) has demonstrated, courts’ use of these methodologies is often opportunistic. This could be a product of pure ideological motivation, though I tend not to believe that that’s what judges or justices understand themselves to be doing. More likely it’s a manifestation of bounded rationality and the fact that motivated reasoning is a powerful drug. Perhaps the judges and justices would say that in their best judgment the ordinary tools of originalism, say, weren’t the best tools for this specific job. Judgment, as I emphasize throughout Judges, Judging, and Judgment, is inescapable, and judicial behavior, if not judicial rhetoric, demonstrates as much.

                What we need, then, is to prioritize and praise the exercise of good judgment. Saying that, of course, leads me straight into the sorts of objections one can expect in a world that privileges the tangible and quantifiable. If I can’t precisely define it, if it can’t be measured, it must not be real. “This person has good judgment” will become just another way of saying “this person is likely to reach conclusions I prefer.”

                That’s a risk, no doubt. But I don’t think it’s impossible for us to reach consensus on characteristics we want judges to exhibit. I’d suggest that dispassion is a component of good judgment, and that whatever the rule of law means it certainly means that my side doesn’t always win, even in the most difficult and most politically charged cases. There are others where we might disagree. In my view good judgment involves—and in this respect my book might as well be called Son of The Lost Lawyer—the exercise of practical wisdom, including at its core recognition of the idea that the law exists to serve multiple and often-conflicting social ends rather than to seek perfect compliance with some abstract, theoretical ideal. It also involves, for something that early experience suggests is a tough sell amongst the law professor community, the cultivation and exercise of intellectual humility. But here I stand with Cardinal Lawrence, Ralph Fiennes’s character in the movie Conclave: “the one sin I have come to fear more than any other is certainty. Certainty is the great enemy of unity. Certainty is the deadly enemy of tolerance.” Much better, in my view, to constantly ask ourselves the question “what if I’m wrong”?

                There’s much more to say, of course, including a dive into a growing body of interdisciplinary research into the nature and effects of epistemological humility, both in general and with respect to the judicial role. I’ll refer you to the book for that, and I hope you’ll check it out. I’ll be back here with a couple more posts less directly related to the book next week.

Posted by Howard Wasserman on January 17, 2025 at 10:49 AM in Books, Judicial Process | Permalink

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