Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic. He’s the author of a recent article in the New York Times which exemplifies a peculiar disaffinity between law and logic. In this article he professes a fondness for a positive vision of progressive jurisprudence. He doesn’t define how this division of justice differs from some other variation, say non-progressive. But he does give us a hint of what he means and how he thinks of the law.
[T]he Roberts court has shown a pro-corporate bias — a charge supported by a recent study by the Constitutional Accountability Center, which found that in the term that just ended, the United States Chamber of Commerce won 13 out of the 16 cases in which it filed briefs, a success rate of 81 percent.
Think about this statement for a bit. It tells us a lot about how many legal scholars view their subject. The mere fact that a court has ruled for a group 81% of the time is taken as evidence of bias. If the same court had ruled against the Chamber of Commerce 81% would that indicate an anti-corporate bias? Mr Rosen apparently believes that courts can only act out of bias. He does not allow the possibility that they are offering an unbiased interpretation of the law. It is possible that the court ruled for the Chamber 13 of 16 times because the law supported the Chamber’s position 13 times out of 16. I’m not saying that this is true, just that it’s possible. And if it’s possible then Rosen’s attribution of bias to the court likely reflects his own bias rather than fact.
Progressive jurisprudence would seem to be based on a foundation of bias. There’s bias Rosen likes and bias that he finds repugnant and which should be repelled. Even if you rule the “right way” you are better to do so from bias rather than conviction. It’s quite clear from his article that he find Justice Oliver Wendell Holmes unsavory. Although Holmes and [Justice Louis] Brandeis both objected to conservative activist decisions striking down progressive regulations, Holmes, unlike Brandeis, had no personal sympathy for the Progressive movement…Like Holmes, Brandeis was committed to upholding laws passed by state legislatures and Congress in most cases. But instead of sneering at the progressive laws, Brandeis eloquently defended their economic and moral justice. In other words, Holmes has less stature, according to Rosen, because he was able to set aside his personal prejudices and rule in favor of laws he thought were based on sound jurisprudence irrespective of whether or not they appealed to his private view of the world. I would think that Holmes’s ability to set aside his own prejudices raises him above Brandeis. It’s easy to rule in favor of something you believe. It’s much harder to decide in favor of something you dislike, but which dispassionate analysis of the law compels you to uphold. Personal bias appears to trump anything else in interpreting the law if you’re progressive. You have to love Big brother not merely obey him. He appears to say that bias is the only principle which guides courts. In his view there is no objective standard to guide judges.
Rosen’s view is what has riled so many people whose minds are less clouded with visions of social justice. If judges ruled as Rosen would have them there would be no reason to have laws. Just send every issue of contention to a judge immersed in his personal view of social justice and have him do what’s right. Of course, the next judge may have a different view of what is just and rule differently. If the law has no connection however remote to some objective reality then the courts and our laws become an arena of chaos.
How does one determine what social justice is? If we disagree about its character do we take a vote? Fifty percent plus one prevails. Or do we defer to more enlightened minds like that of Professor Rosen? If it’s progressive it’s just. Rosen’s argument is incoherent even if you’re a progressive. It fails any test of logic. Hayek felt that social justice “does not belong to the category of error but to that of nonsense, like a moral stone.” Professor Rosen believes that judges should rule they way he would unfettered by any impediment of law.