From the front page of today's New York Times: "In Classroom, a Pragmatic View of the Supreme Court."
Regular Growthology readers might not expect us to comment on the impending Supreme Court nomination battle, but given the profile of the institution,
its recent trend to hear business and regulatory cases, and its broader impact on areas touching growth and entrepreneurship, we feel we should contribute to the dialogue.
Much has been made, as in today's Times story, of President Obama's generally pragmatic approach to governing. "Pragmatic" has probably been the most frequently repeated word since news of Justice Souter's retirement broke, usually defined against ideology. From today's story:
"And more than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions. This may be his most distinguishing quality as a legal thinker: an unwillingness to deal in abstraction, a constant desire to know how court decisions affect people's lives."
The persistent juxtaposition of pragmatism and ideology raises several issues. First, can we please retire the trope that these two concepts are opposites? Ideology has gained a bad name, but really, who is bereft of ideology? It's simply the way one sees and interprets the world. Even increasing evidence from neuroscience research confirms that, as one writer put it, perception is inference. Your "pragmatic" approach is always filtered through your interpretative view of the world, that is, your ideology. (Even the
Pragmatism school of philosophy is itself a distinct school of thought, not an anti-school.)
Second, reading the Times story carefully belies the now-established media narrative of pragmatic justice: "Mr. Obama believes the court must never get too far ahead of or behind public sentiment." Nothing earth-shattering there. Later, however, we read that "Mr. Obama often expressed concern that 'democracy could be dangerous' . . . that the majority can be 'unempathetic.'" In other words, the President views the Court as the Founders did, and as probably most people do: as a bulwark of democracy. Because it controls neither the purse nor the sword, the Court can rarely run far astray of public opinion even if wanted to; the Justices know this, by the way--they are as much interested in the preservation of their influence as normal humans. At times, however, President Obama sees the need for the Court to stand against the tides of public opinion. This is how it's supposed to work and few would dispute it.
Third, the pragmatism-ideology debate is framed as concern "about legal consequences" versus "formalism," supposedly blind to those consequences. Last time I checked, justice was still blind, and a common mistake in any discussion of justice is to conflate justice and fairness. Justice means the consistent applications of established and accepted rules; fairness is a subjective determination. (Forgive me: I grossly oversimplify for space considerations. There is an entire discussion to be had about the foundations of those rules, for example, and Martin Luther King, Jr., probably rendered
one of the most eloquent discussions of this in legal history.)
Two threads of justice have long run through Supreme Court jurisprudence: procedural and substantive due process. Procedural due process is justice as equal application of the law. Substantive due process is, as one of my law professors put it, the filling of an empty vessel with one's own beliefs and norms. The Times story--and every media narrative concerned with the Court--tries to make the case that President Obama will favor substantive due process. He doesn't deal in legal abstractions, we are told.
There are indications, however, that the President tilts toward procedural due process--that is, justice and not fairness.
"In Mr. Obama's due process and voting rights classes, he showed students the broad failures of Reconstruction-era amendments that tried to establish equality for blacks."
And who would the President most like to argue before? Judge Richard Posner, quite possibly the best legal mind and writer of the last half-century and a leading exponent of
Law and Economics. Why? Because Posner "was smart enough to know when you were right, Mr. Obama told the class." In fact, if I try to think of an approach to the law that has as its lodestar the consideration of the real-world consequences of legal decisions, Law and Economics is the best example that comes to mind. And I assume that many people would consider Law and Economics to be ideological, not pragmatic. Yet it may turn out, and it certainly seems to be the implicit message of the
Times story, that President Obama views Law and Economics as the way courts are supposed to approach the law. (The Rehnquist Court disappointed many conservatives because it wouldn't deal greatly in the broad-brush generalizations of prior Courts. This may have been a function of the types of cases it saw and their social context.)
Now, this is all just speculation on my part, but it appears that President Obama has a deep respect for Supreme Court jurisprudence. Our media-soaked interest group political culture makes the nomination process an Armageddon-type battle over ideology and the supposed substance of Court cases. Yet the President, unlike many in the media and many of his supporters and opponents, has actually read Supreme Court opinions, has studied the careful reasoning every Justice employs. It takes far more thought, analysis, and, frankly, willpower to weigh the process and substance of the law and resist the easy temptations of shallow "pragmatism." President Obama, thankfully, seems to know this.
