"Pragmatism" That's Scary Beyond Imagining

Walter Dellinger and Dahlia Lithwick

"Pragmatism" That's Scary Beyond Imagining

Walter Dellinger and Dahlia Lithwick

"Pragmatism" That's Scary Beyond Imagining
An email conversation about the news of the day.
June 25 2003 11:36 AM

Walter Dellinger and Dahlia Lithwick

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Hi Walter,

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As ever, we agree more than we disagree. I can't doubt for a minute that my undergraduate and law school education was vastly enriched and informed by the kinds of racial, geographic, gender, and economic diversity you describe. (I, too, was the affirmative action admit—ensuring that at least one Canadian at Yale that year wasn't a hockey player with seven teeth. … Canadian Thanksgiving dinner at Yale tends heavily toward mashed foods.) But I am just not persuaded that such intellectual diversity is constitutionally compelled, or rather, so vitally important to education that it might overcome the Constitution. Justice Thomas is too flip: It's not simply aesthetics. But is racial diversity really so vital to a school's academic mission? Are schools in Japan failing to educate because students hail from homogeneous backgrounds?

Jan Crawford Greenburg has an interview with Justice O'Connor in today'sChicago Tribune. Since interviews with the justices are so rare, it's worth checking out. Talking about her dear friend Lewis Powell, the architect of Bakke's affirmative action "factor-plus-test," O'Connor says: Powell, as a legal thinker, probably cared "more about the ultimate fairness of the resolution" of a particular problem "than is typical in deciding these abstract principles of law." This is your legal pragmatism argument from Monday—that the legal reasoning is admittedly flawed but the outcome is nevertheless compelled. I understand that Richard Posner's book on judicial pragmatism argues that Bush v. Gore was rightly decided because, while it got the law completely wrong, it achieved the pragmatic result of keeping the country out of a constitutional crisis. This sort of "pragmatism"—creeping extrajudicial notions of what's best for the country—is scary to me beyond imagining. I recognize that fundamental fairness is an important part of judicial decision-making, but when it's unmoored from precedent, or logic, or the straight clean lines of the law, it gives unfettered license to judicial bias and prejudice. Can we at least agree that the court came to the right answer, this time, in a very dangerous fashion?

You mentioned on Monday the need for the court to work as a group—I've been chewing on that for two days, and it continues to make a lot of sense to me. But what do you make of yesterday's New York Times story, about the mathematical breakdown of the court's decisions? The fact that the judges vote in blocs so disproportionately suggests that they aren't deciding cases as isolated individuals, but as two distinct political factions. Not a huge surprise to anyone, I suspect, but it highlights the problem with your group-decision theory: We just end up with two polarized sub-groups, who spew out infinite 5-4 decisions. …

The other tantalizing bit in the Greenburg article is the suggestion that O'Connor's broad and dramatic opinion in the Michigan case looks like the sort of "swan song" that could signal a retirement. Though I'm not usually one to read tea leaves, this thought intrigued me. And I'd submit that O'Connor's new book, and even the interview itself, reveal a new willingness to talk on substantive legal matters that O'Connor hasn't shown in the past. Why is she so forthcoming about her legal philosophy all of a sudden? Is she getting ready to pack it in?

Let's talk for a moment about the library porn filters case— United States v. American Library Association. It seems that Congress finally managed to block children's access to porn—for those eight kids in America who go to public libraries to find it. Rehnquist's opinion is pretty amazing, both for the cavalier dismissal of libraries as public forums (they just aren't, says Rehnquist) and the very disingenuous contention that blocking thousands of Web sites (including medical sites and art sites and a California Jewish Community Center) is no different than a librarian's decision not to put Penthouse on the periodicals table. Most troubling is Chief Justice Rehnquist's reliance on Solicitor General Ted Olson's word at oral argument, that library patrons can simply ask to have a specific computer unblocked, without further explanation. The plaintiffs in this suit asserted otherwise, but if Olson and Rehnquist are correct, and any library patron can sashay up to the checkout desk each morning and demand the computers be unblocked for the day, then this result probably is acceptable. This is the basis for Justices Kennedy and Breyer's concurrences: No great burden to the patron. No explanations, no embarrassment. We'll see. … I don't think it's going to work out that way.

Don't get me wrong, Walter. Some of my favorite people on earth are former solicitors general. But is blind reliance on a throwaway comment by the SG at oral argument worth more than the findings of fact at trial?

Looking forward to your thoughts on this, or on that insane Max Factor case—the one with the bounty hunter named "Dog." And let me know what the boys at Sutton's drugstore are saying about the sodomy case.

Cheers,
Dahlia