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Practical Tortoise Reasoning and Judge Alito

According to news reports, Judge Alito has said that his personal views will not affect his judicial opinions.  Putting aside "legal realist's" claims that a judge first makes a decision, and then finds a way to justify that decision, I still think Judge Alito is mistaken.

There are numerous views on what motivates a person's mind to move, what moves a person to action.  Under the Humean view (named after famous philosopher David Hume), man is ruled by his passions. Others argue that man is ruled by reason.  So, which it?  One of my favorite short essays on any topic, by my favorite modern philosopher (Simon Blackburn), argues persuasively that passion, not reason, moves a man's mind.  Passion moves our minds to reason.

The award-wining essay, Practical Tortoise Raising, begins:

In 1895 Lewis Carroll wrote his famous Mind article ‘What the tortoise said to Achilles’. The problem he raised can succinctly be put like this: can logic make the mind move? Or, less enigmatically, how do we describe what is wrong with the tortoise's argument that, however many premises Achilles has him accept, he always has space to refrain from drawing the conclusion?

In this paper I am not so much concerned with movements of the mind, as movements of the will. But my question bears a similarity to that of the tortoise. I want to ask whether the will is under the control of fact and reason, combined. And I shall try to show that there is always something else, something that is not under the control of fact and reason, which has to be given as a brute extra, if deliberation is ever to end by determining the will. This is, of course, a Humean conclusion, and the only novelty comes in the way I wish to argue it. For I believe that many philosophers think, erroneously, that Hume relies on a naive and outdated conception of facts, or an even more naive and outdated conception of reason, in order to put passion on their throne. My tortoise defends Hume: what we do with our premises is not itself construed as acceptance of a premise.  

As it stands the project is only described metaphorically. Presumably everything, including movement of the will, is under the control of facts in some sense, for even if they are only facts about our physiology or chemistry, still, they make us move. I am interested of course, only in cognitive control, or control by the apprehension of fact and reason.  

In his essay, Blackburn persuasively argues that the human mind is always moved, at least in art, by passion.  What does this have to do with the Alito nomination?  Everything.

A judge is ruled in part by his passions.  If Alito thinks Roe v. Wade is a constitutional abomination because it is untrue to the Constitution's text or structure, or because its outcome leads to the slaughters of millions of unborn babies, he will look for ways to strike it down.  His disdain, or passion against Roe, will move him mind into action.  This shouldn't be controversial, as we've all experienced some form of this. 

A few months ago I was called into my boss's office.  There I met a client who was being royally screwed over by a former employee.  The injustice of it left me seething.  I liked the client.  I cared about the client.  I wanted the client to win. 

To help the client win, I had to pour over pages of administrative regulations and analyze tons of numerical data.  I even made an Excel sheet and crunched numbers.  I read many things for fun; I do not read regulations for fun.  Indeed, reading regulations is tortuous.  But because I cared about the client, because I thought the client was receiving a raw deal, I read the regulations.

I read Section 1983 cases because those cases usually involve someone's rights being violated.  Section 1983 is highly technical; and every case is a potential procedural nightmare.  But Section 1983 procedural issues are, to me, interesting.

Any good lawyer with a client being screwed will suffer through dozens of hours of sheer boredom (and, oh how much of the law is such a bore!) to vindicate the client.  The lawyer doesn't live through the boredom because he wants to; she's moved by her passion for the client.  The lawyer's passion, in a word, moves the  mind.  (One reason lawyer's burn out is because they lack passion.  Uninspired lawyers lead lives of quiet desperation.)

Thus, a judge's personal views are absolutely relevant.  Not because it means the judge will necessarily seek to implement her own personal views, or even because the judge will misapply case law to reach a given result, but because the judge's personal views gives us insight into how hard a judge will work on a case.

We - and that includes judges - are all at least partially moved by our passions.  We have a right to learn the what passions move our Supreme Court Justices.

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