"Explaining" justices

Volokh, Eugene VOLOKH at law.ucla.edu
Mon Jun 4 11:26:29 PDT 2007


    1)  The charge that I was responding to was entirely bereft of
support.
 
    2)  I surely forgive anyone who finds anything I write about
interesting!  But if you want to accuse me of hypocrisy, that's fine.
The fact of the matter is that I too find plenty of hypocrisy on the
Left.  I try not to make such accusations publicly absent sufficient
evidence, but I want to assure list members that I find lots of comments
by those on the Left "interesting" precisely for those reasons.  
 
    In fact, as the years pass, I'm inclined less and less to
interpretive charity than I have been in the past.  I still do assume,
as I suggested in my post, that most liberals hold their misguided views
for well-intentioned (though misguided) reasons.  But I don't want
anyone to mistake my hopeful judgment on this for a naive view that I
assume this as to everyone.  
 
    More broadly, as the years pass I become less and less optimistic in
my thinking that people of the Left and people on the Right (and
libertarians), even scholars, can have a productive and persuasive
conversation on many such matters.  The battle lines are drawn.  Plenty
on the left and right are happy to be hostile, rude, and disingenuous
(not the same things, but things related to the difficulty of productive
conversation) to each other.  We see the same on this very list, and in
other academic forums.  I try in my own life to turn a blind eye towards
this to the extent possible.  Increasingly, I find myself unable to do
that; I suspect others are as well.  Sad, but there it is.
 
    Eugene


________________________________

	From: Trevor Morrison
[mailto:trevor-morrison at lawschool.cornell.edu] 
	Sent: Monday, June 04, 2007 11:18 AM
	To: Volokh, Eugene; Con Law Prof list
	Subject: RE: "Explaining" justices
	
	
	But of course the people who are making these sorts of points
about Justice Thomas (and I'm not saying I'm one of them; I find much to
dislike in his approach to legal interpretation, but I don't tend to
seek explanations for his approach -- or any other Justice's, for that
matter -- in psychoanalytic or other psychological terms) don't think
they are levying "unsupported charge[s]."  And I, at least, think
David's point is not so much "well-supported" as overstated and
overgeneralized -- plenty (though I concede not all) of the criticisms
of Thomas's work focuse on the doctrinal merits, just like the typical
criticisms of Scalia's work.
	 
	So now we're just left in a difference of opinion as to what
constitutes a "well-supported" charge of hypocrisy, or bad faith, or
whatever.  In those circumstances, you'll have to forgive me if I find
it interesting to note which posts our list moderator tends to
scrutinize most carefully for their compliance with norms of fair
dealing.
	 
	 
	 
	Trevor W. Morrison
	Associate Professor of Law
	Cornell Law School
	116 Myron Taylor Hall
	Ithaca, NY 14853
	ph. 607.255.9023
	fax 607.255.7193
	SSRN author page:  http://ssrn.com/author=372569

________________________________

	From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh,
Eugene
	Sent: Mon 6/4/2007 1:51 PM
	To: Con Law Prof list
	Subject: RE: "Explaining" justices
	
	
	    Well, it's interesting if you assume that I've closely read
all the posts on the thread -- as it happens, I didn't see that sentence
in David's post.
	 
	    But even looking at it, it seems to me that David's charge
is far more firmly supported than the charge that Justice Thomas is
lying when he says he sympathizes with poor blacks.  As David pointed
out, Thomas gets regularly psychoanalyzed in ways that others do not
(though I agree that in principle it would be interesting to get a sense
of how all Justices' personal histories affect their judging).  Thomas
has gotten called -- not by all on the Left but by some -- a race
traitor, which, as Jim Chen aptly put it, is the one remaining crime
that only nonwhites are seen as committing.  No-one asks whether Justice
Stevens' views are adequately representative of or sympathetic to white
mainstream views; they ask this of Justice Thomas.
	 
	    So the difference, it seems to me, is between a
well-supported charge of racial double standards, and an unsupported
charge of lying when one says that one is sympathetic to poor blacks.
	 
	    Eugene
	 
________________________________

	From: Trevor Morrison
[mailto:trevor-morrison at lawschool.cornell.edu] 
	Sent: Monday, June 04, 2007 10:47 AM
	To: Volokh, Eugene; Con Law Prof list
	Subject: RE: "Explaining" justices
	
	

		Eugene writes that "many conservatives have come to
accept the possibility that liberals may simply be misguided and not
hypocrites."  I'm sure that's true, and I'm sure it's also appropriate
to wish that some "liberals" would more consistently presume that
"conservatives" operate on the basis of genuinely held views not tainted
by hypocrisy, prejudice, etc.  But's it's interesting that Eugene chose
to make this intervention at this particular point in the conversation,
after remaining silent when his co-blogger said the following (emphasis
mine): 
		 
		"In short, when Scalia writes his opinions, it's seen as
a reflection of an underlying judicial philosophy.  When Thomas writes
similar opinions, it's asserted that there must be some deep
psychological reason for it.  I'm not seeing much of a reason for this
double-standard, beyond their respective skin color."
		 
		 
		 
		Trevor W. Morrison
		Associate Professor of Law
		Cornell Law School
		116 Myron Taylor Hall
		Ithaca, NY 14853
		ph. 607.255.9023
		fax 607.255.7193
		SSRN author page:  http://ssrn.com/author=372569

________________________________

		From: conlawprof-bounces at lists.ucla.edu on behalf of
Volokh, Eugene
		Sent: Mon 6/4/2007 1:30 PM
		To: Con Law Prof list
		Subject: RE: "Explaining" justices
		
		
		    Oddly enough, conservatives actually believe that
their views of the law -- for instance, their views related to criminal
law, or school choice, or race preferences -- do indeed help citizens
generally, and the black lower class in particular.  It may be shocking
for liberals that conservatives would sincerely hold such a zany view,
but (likewise, oddly enough), it's shocking for conservatives that
liberals would actually sincerely think that liberals' failed policies
would help citizens generally and the black lower class in particular.  
		 
		    Yet many conservatives have come to accept the
possibility that liberals may simply be misguided and not hypocrites --
that they may sincerely believe even many things that conservatives
think are wrong, to the point of being unbelievable.  I'm sure not all
conservatives have done that, but I know plenty of conservatives who
have.  Might liberals be persuaded to do the same?  Might they come to
believe that Thomas might be sympathetic to the interests of poor blacks
(a group to which he and those he loves or loved once belonged), even if
they think that his approach is unwise or unsound?
		 
		    Eugene
		 


________________________________

			From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
			Sent: Monday, June 04, 2007 10:24 AM
			To: Con Law Prof list
			Subject: Re: "Explaining" justices
			
			
			GLOUCESTER: Why, I can smile, and murder whiles
I smile,
			And cry 'Content' to that which grieves my
heart,
			And wet my cheeks with artificial tears,
			And frame my face to all occasions.

			3 Henry VI, III, ii

			I find the assertion of Thomas's symapthy to the
interests of the African-American lower class to be as empty as
Gloucester's smile, at least when it comes to his constitutional and
statutory jurisprudence.  There have been many opportunities and plenty
of doctrinal room for him to show that sympathy.

			Steve

			On Jun 4, 2007, at 1:05 PM, Rosenthal, Lawrence
wrote:


				The Fourteenth Amendment, unlike the
Thirteenth Amendment and the Civil Rights Act of 1866, was written in
race-neutral terms.  As Earl Maltz and others have demonstrated, this
was a quite conscious decision made during the drafting process.  Thus,
I see no contradiction between Justice Thomas's position on affirmative
action and the text or original meaning of the Fourteenth Amendment.  It
is a perfectly plausible reading of history to conclude, as many
scholars on the left have done, that whatever constitutional power
Congress has to authorize race-conscious action resides in the
Thirteenth and not the Fourteenth Amendment.

				FWIW, I do not intend to "praise"
Justice Thomas.  I have many qualms about his jurisprudence.  But I find
him to be a remarkably principled and candid justice who has deserves
better than he has received at the hands of the academy.  I also believe
that the charge that he is hostile to the interests of minorites is
particularly unfair.  I find him to be extraordinarily sympathetic to
the interests of the the African-American lower class -- a group that,
for the most part, is particularly poorly understood by those in the
legal academy. 

				Larry Rosenthal
				Chapman University School of Law


			
			-- 
			Prof. Steven D. Jamar                     vox:
202-806-8017
			Howard University School of Law           fax:
202-806-8567
			2900 Van Ness Street NW
mailto:stevenjamar at gmail.com <mailto:stevenjamar at gmail.com> 
			Washington, DC  20008
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			"Great people are those who make others feel
that they, too, can become great."  
			Mark Twain 



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