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Post 0

Saturday, September 17 - 7:56am

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Tibor,

You paint a pessimistic view of Roberts, and may be correct. On the other hand, his testimony before the Senate may have been 'performance art'. We can always hope.

Post 1

Saturday, September 17 - 11:18am

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Considering the horde he had to perform against [for?] - very understandable...
(Edited by robert malcom on 9/17, 11:19am)

Post 2

Saturday, September 17 - 1:52pm

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Tibor, I totally appreciate your right opinion here (even opinions can be right or wrong; and this is an example of a right opinion).

However, I think that Davison & Malcom are not without point here. To move from the realm of the opinion into that of knowledge (the realm of which right thinking makes us deserving), a missing ingredient is required: Judge Roberts' operational definition of idealogue. Without this crucial statement (from his crucial mouth), we will only be able to control the weather of a 'tea cup.'

I have just finished a whole week discussing/disseminating the correct view of the US Constitution with/to students -- and I understand your theme intimately.

Happy Constitution Day, by the way.

Ed

Post 3

Saturday, September 17 - 2:21pm

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In the parts of his testimony that I saw, Roberts said some very 'unpragmatist' things about following strictly what the Constitution dictates.

Post 4

Saturday, September 17 - 5:04pm

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Yes, I appreciate what he is up against. I suppose my beef is that he doesn't just come right out and say that he stands for this and that but as a justice he will go by what he understands is the meaning of the US Constitution, with some adjustments for inconsistencies where that's warranted. Also, I am a bit unhappy about all this genuflection before precedents--had all justices believed in this, we would still have slavery!
As a philosophy professor I often have to explain stuff with which I completely disagree and can do this without letting on my disagreement. I am pretty sure others, too, have had to grapple with using certain standards for some conduct and different standards of other kinds. (A student of mine back at UCSB, who is now a close friend, used to nag me about why I don't defend capitalism in class, instead of just explaining it as I did competing systems. Well, I took a job to do that, that's why, which was quite OK to do as a teacher.)

Post 5

Saturday, September 17 - 7:52pm

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Machan,

had all justices believed in this, we would still have slavery!

Eh? But the justices upheld Dred Scott's slave status. I don't know of a single judge who completely ignores precedent.

Also, if I have time, later I'll explain how judicial pragmatism doesn't usually imply "see[ing] not in terms of right and wrong...."

Jordan

Post 6

Sunday, September 18 - 8:56am

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The point is that whatever constitutional arguments sustained slavery were eventually dismissed by subsequent courts which didn't respect precedents. And it is the essence of pragmatism that no fundamental principles exist for determining right versus wrong--it's all a matter of what is practical for the time being.

Post 7

Sunday, September 18 - 10:59am

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Tibor,

The point is that whatever constitutional arguments sustained slavery were eventually dismissed by subsequent courts which didn't respect precedents.

Didn't constitutional amendements bind the courts to disregard pro-slavery judicial precedent? Courts didn't have a choice. They had to ignore precedent.

And it is the essence of pragmatism that no fundamental principles exist for determining right versus wrong--it's all a matter of what is practical for the time being.

"Judicial pragmatism" is usually associated with being outcome-oriented. One can be outcome oriented and principled. Judicial pragmatists often employ principles dealing with social stability, economic intgrity, and judicial efficacy. Judical pragmatists often downplay the text and intent of statutes if the statutes' applications and consequences are inconsistent with the aforementioned principles.

Jordan

Post 8

Tuesday, September 20 - 5:14am

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As to whether "Judicial pragmatists often employ principles dealing with social stability, economic integrity, and judicial efficacy.[and whether] Judicial pragmatists often downplay the text and intent of statutes if the statutes' applications and consequences are inconsistent with the aforementioned principles," let me just note that those are goals, not principles. Principles pertain mainly to the means for reaching goals, even if the goals shape the principles. I think the most astute and challenging judicial pragmatist today is Richard Posner. For my own assessment of his views, see my Objectivity, Recovering Determinate Reality in Philosophy, Science, and Everyday Life (Ashgate, 2004). I have a chapter on Posner in this work.

Post 9

Tuesday, September 20 - 6:53am

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Hi Machan,

I agree that principles are typically means-oriented. However, in professional ethics and law, principles are usually captured with pop phrases like "judical efficiency," "autonomy," "beneficence," "justice," etc. Consider judicial efficiency; it's really an arch-principle that says, "our actions ought to conform with judicial efficiency." Principles subsumed under this arch-principle include: limiting who can use some particular claim to recover in a court of law, limiting statute of limitations exceptions, limiting legal uncertainties.

Jordan