Steven Douglas Maloney

Posts Tagged ‘Public Justification’

Professor Brian Kalt is dissapointed with Senator Biden’s legal views:

First, when asked why he supported the decision in Roe, Biden said “Because it’s as close to a consensus that can exist in a society as heterogeneous as ours.” That’s a preposterous answer, for three reasons. First, anyone who can put the words “Roe” and “consensus” in the same sentence without a “no” in the middle has not been paying attention to the last thirty-five years of American history. If Roe represented a consensus, it would not have been such a landmark case, and it would not have caused one of the biggest rifts in American politics in the intervening years.

 Professor Kalt insists that the best consensus strategy is:

if tracking consensus is the standard for a good judicial opinion, then Palin’s answer was much better. There is no national consensus on abortion. There is a diversity in the U.S., and in individual states. Tracking consensus is a lot easier if states can each go their own way—think of lighting a house, and having either one switch for the whole house, or individual switches for each room—and easier still if it is done through the legislative process rather than the less flexible judicial process.

By that logic, why stop at states?  Why not say that it is the right for each citizen to choose since there is no consensus on the policy? If we accept that there is no deliberative outcome on abortion that generates consensus, why opt for consensus in smaller groups rather than individual preference aggregation?  Second, by ruling that Roe is an extension of Griswold, the court reached for the consensus on the grounds of the basic structure of society rather than for consensus on the particulars of the issue.  The court appealed to our shared consensus of the right to privacy and our morally autonomy on considering questions of the good rather than “solve abortion from the bench.”    

That relative inflexibility is the third point: the job of judges in constitutional cases (in my opinion, but apparently not Biden’s) is to apply the law as it is, not as it should be. Legislators are supposed to remake the law line with the election returns; judges are supposed to hold the constitutional line and they are given lifetime appointments to insulate them from political considerations.

And what if Biden’s position more resembles John Rawls’:

The positions of judges, umpires, and referees are designed to include conditions that encourage the exercise of judicial virtues, among them impartiality and judiciousness, so that their verdicts can be seen as approximating considered judgments, so far as the case allows.

Of course once we allow this to be the guiding principle of legal judgments, judges will have to give publicly justifiable decisions about fairness to justify decisions rather than being reduced to majoritarian toolboxes asked to endorse the majority’s pathetically suboptimal use of public reason. 

Finally, Professor Kalt indicate we should be worried about Biden’s judgment that he disagrees with the Supreme Court for striking down a bill that Biden authored.  How does Professor Kalt expect Senator Biden to react to that?  

The pattern Professor Kalt warns us about is that Biden is a man with deranged legal views who wants to mess with the basic structure of society.

Here’s another pattern, both examples mentioned in his piece are examples where Biden has raised concern about our basic structure of society’s ability to treat women as free and equal persons.  He has supported, and even undertaken measures to alter the basic structure of society to move it more in line with its aspirations.  In this version, he doesn’t sound so monstrous to me.