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On the value of intellectual firepowerAnother post that was originally written as a blog comment. I agree that it likely does not often work that intellectual argument will sway a decision one way or another, particularly on the big, controversial cases. But those cases are a minority of what the court does with its time. I also think it does us a disservice to suggest that someone like Breyer or even Souter, or especially Kennedy are idealogues, immune from solid reasoning. The mistake of presuming one’s opponent to be a fool is a liberal fallacy we must not replicate on our side of the aisle; these are extremely intellegent people, and what you must realize is that even those 5-4 decisions are not always the same five and the same four. I read a case a couple of weeks ago, I think from the 1992 term, and Justice Souter joined a Scalia concurrence! In Hamdi, Justice Stevens joined a Scalia dissent! Look at Monge v. California (524 U.S. 721) and read this seemingly-improbable sentence: Justice Scalia, with whom Justice Souter and Justice Ginsburg join, dissenting. I think people who don’t follow the court’s work have this idea of a gladiatorial arena in which two hopelessly irreconcilable camps slug it out for the future of constitutional law. In many ways, the Supreme Court is a supreme bore; the lion’s share of its work is uncontroversial cases turning on staggeringly minute details of extremely uninteresting provisions of obscure statutes. See, e.g., Richards, The Supreme Court Justice & Boring Cases, 4 Green Bag 2d 401. When dealing with cases like this, surely logic and argument can and frequently will carry the day in a conference. It is true that you are never going to talk Justice Ginsburg out of her opinion in a case like U.S. v. Virginia, but the court takes two or three of those cases - out of seventy, eighty or so cases decided per term - and in the rest, intellectual heft makes a difference. Anyone who thinks the Supreme Court is a flashy, easy gig deciding sexy, constitutional questions has never opened a volume of the U.S. Reports. So I do think that intellectual heft makes a difference in conference. But I would say that it is important to have that kind of ability, even if it never makes a difference at conference. It matters because of the quote from Lady Justice Arden, that "[w]e must not forget that the dissenting opinion is often very valuable in the development of the law in the long term. Often, it contains the germ of an idea, which in a new generation will give forth to the large oak tree. So we should not underestimate the value of those dissenting judgements." Why do you think Justice Scalia writes dissenting opinions? Because he has something to get off his chest? Because he wants to get invited to speaking engagements at conservative seminars? The value of a dissenting opinion, well-written, is this. We are fighting for the future of the law. We are fighting to change the culture in law schools and courts around the nation, and eventually, public discourse itself. To do this, we must win the argument. When Justice Scalia was dissenting in Morrison v. Olson, his argument did not carry the day - but a generation of law students read that dissent and said to themselves "wow! I’ve never thought about it that way!; and so they continue to read Scalia’s dissents, and they continue to be influenced by him. They start to think more seriously about the role of a written constitution in a democracy, they therefore become more conservative (as defined as commitment to the pricinciples of constituional government), and they write conservative law review articles which later influence other students to become more conservative. Those people are the beginnings of our future law professors, lawyers, judges and Supreme Court justices. The well-reasoned and pithy dissent is an integral part of reclaiming the legal academy from the liberals. This is, in fact, the most pernicious aspect of the Miers nomination - that it sends a message to conservatives, "don’t write anything, don’t influence anyone, don’t join conservative organizations, because if you do, you will never be a judge." How the hell are we going to make the judiciary more tethered to the original understanding and to textualism if we are cutting off the wellhead of conservative legal thought, silening the voices which bring people over to our side? This president must learn, the hard way if necessary, that the rapture does not beging January 21st 2009, and we are still going to be fighting this struggle for many years to come. We will still need to find new blood, and he is essentially making it harder to influence new legal conservatives. So I think intellectual heft matters a great deal, and there is no evidence Miers has it. Maybe she does, maybe she doesn’t. But there are a large number of people - male and female, white black and latino - who unquestionably DO have this kind of firepower. Why the hell is Bush asking us to trust him when there is zero need to do so? Why should we trust him when he asks us to trust despite a veritable pantheon of potential nominees who would not NEED to be trusted? Most of all: why should we trust him when, twice in a row, he has unquestionably failed to deliver on THE promise. The promise for which some people worked hard for him, gave time, money and sweat to get him elected. The promise to appoint Justices in the mold of Scalia and Thomas. Miers is neither. Bush asks us to trust him that he won’t hurt us too much while pulling the knife out of our backs. That’s a nice sentiment, but it’s besides the point, and a little too late. Reagan would trust, but verify. In the absence of materials by which to verify, we cannot be reasonably asked to trust. |
    
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