Think of Duncan v. Walker, for example. 28 U.S.C. § 2254 imposes time limits on when a prisoner may file a federal habeas petition, but § 2254(d)(2) tolls the filing period while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending….” The petitioner argued that the word “State” limits the entire phrase “post-conviction or other collateral review,” in which case, a federal habeas petition does not toll the filing period. The respondent argued that the word “State” limits only the term “post-conviction,” not “other collateral review,” in which case, a federal habeas petition does toll the filing period. The court held, seven to two, that the petitioner was right; my question is, assuming that this is a closer question than I think it is, and that it is therefore a judgment call, what kind of experience do you think would have been illuminating? And which side had it? Clearly one of them must have, since, given the presence of justices on either side of the question, the experience would be shown to be immaterial if neither of them did.

The point is further illuminated – or perhaps our disagreement is crystalized – by your observation that “[a]s Cheney recently proved with his comments on gay marriage, a little exposure to a reality you would not have otherwise encountered, likely leads to a better understanding that frankly rarely if ever happens in a vacuum.” If that is the kind of experience that you have in mind, I am forced to wonder what kind of case you think it would make a difference in. The court has not been asked to decide – would be institutionally incompetent to decide – “is being gay okay?” The cases that one thinks of as being “about” homosexuality of course are about no such thing: Romer and Lawrence are about what the Fourteenth Amendment means and how it applies to given fact patterns. I have no idea if Justice Scalia has any gay friends, but I do, and I agreed with his conclusions. What can I infer but that “exposure” (your term not mine! ;)) to homosexuals makes any difference in those cases.

The best case for you, I would think, is probably Scott v. Harris, where the police’s decision to force an end to a high speed chase was naturally scrutinized in terms of how dangerous it was. It was “a chase down what is in most portions a two-lane road [with a 55 limit], at speeds exceeding 85 miles per hour,” with the chasee “swerv[ing] around more than a dozen other cars, cross[ing] the double-yellow line, … forc[ing] cars traveling in both directions to their respective shoulders to avoid being hit[,] … run[ning] multiple red lights and travel[ing] for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up.” The dissenter, Justice Stevens, chided his younger colleagues for thinking that this was so reckless, based on his experience: “Had [my colleagues] learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways—when split-second judgments about the risk of passing a slow-poke in the face of oncoming traffic were routine—they might well have reacted to the videotape more dispassionately.” The court disagreed–eight to one. How valuable and relevant the experience was, then, is questionable.

My layman’s guess is that probably 99% of all cases have a “right” answer, an “obvious” answer. My concern is the other 1%.

No one can entirely put aside their prejudices and presuppositions. I don’t mean by this that no one can attempt honestly to do so, or that no one can reach a conclusion at odds with their personal preferences. I mean that it is impossible by definition. We are a subjectivity. We can only see the world through a subjective prism. It’s not a moral question, but a definitional one.

It goes to core truths of perception. There is no way to ascertain, for example, that you and I both see the color red in the same way. Shown the same color swatch even if we agree on every descriptor, there is no tool that allows us to be sure that we agree on what we see. Bright red? Very red? Cherry red? We may agree it is red and yet be seeing very different things, so that our agreement goes only as far as labels and no deeper.

And presented with a complex chain of events, or a complex code, there is even less of a way to ascertain that you and I are having the same experience. We are irredeemably subjective. Subjective by definition. Subjective by necessity. We can strain all our intellectual muscles, try our best, believe that we have achieved objectivity, but we will still be deceived.

(Note that I am not denying the existence of objective reality, just denying our ability to observe it without subjective distortion.)

I don’t think any of this is controversial to philosophers. I think it’s all pretty well accepted.

As a practical matter we talk of “objectivity” and that’s understandable. But “objectivity” is a chimera, a creature no one has seen or can describe. An illusion. We are trapped in the subjective because we are, by definition, subjective. We are in fact, the subjective.

People, however well-intentioned or disciplined, see what they expect to see and what they want to see, at least to some degree. Which I suspect is why not a single conservative justice voted for Gore, and no liberal justice voted for Bush. And why justices were able to mistake black men and women for property.

People are to one degree or another prisoners of their experience, which is why a broad range of experiences is a safeguard.

That said, there are judgement calls. When those calls occur and there is very little diversity of experiences I think it leads to a less well reasoned decision. I believe that Thurgood Marshall likely got the court to explore more deeply issues of race, just as Alito claimed his immigrant experience did in his hearings and undoubtedly O’Connor brought to the court when she was appointed. I think that is a good thing.As Cheney recently proved with his comments on gay marriage, a little exposure to a reality you would not have otherwise encountered, likely leads to a better understanding that frankly rarely if ever happens in a vacuum. For that, I have to thank you for laying out your reasoning. It fills in some blanks.

No system — very much including the law — allows us to achieve objectivity. The best we can ever hope to do is to attempt by a process of decathexis and self-examination to minimize our prejudices, and then to acknowledge the presuppositions that remain.

Even that most objective of disciplines, science, is regularly distorted by subjectivity, by ambition, by presupposition and prejudice.

This is the problem I have with narrow-focus experts, and why I look for broader experience. I consider people who believe themselves capable of objectivity to be deluded and sometimes dangerous. Objective truth is not ours to achieve, so we should admit into our systems a degree of leavening compassion and common sense and pragmatism.

There are generally multiple views and multiple opinions on every issue. If it were black and white there would be no need for any courts. They interpret the law.

To be sure, there are cases where the question is close, or at least intricate and difficult. Often there are competing canons and rules of construction that cut in different directions; it’s called judging because it requires judgment. Nevertheless, simply because a litigant has advanced a theory of law on which he wins his case, or that a judge has stamped his imprimatur on the theory, does not by itself breathe credibility into that theory, or mean in and of itself that the law is fairly open to that interpretation or construction. That is true whether the court rejects the theory, see, e.g., Rumsfeld v. FAIR, 547 U.S. 47 (2006); Strauss v. Horton (Cal., May 26th 2009); Agrawal v. Pallmeyer, no. 08-2259 (7th Cir., March 2d 2009), or embraces it, see, e.g., Massachusetts v. EPA, 549 U.S. 497 (2007).

This remains true whether the law at issue is simple or complex. Like Prof. Paulson, “I believe in what friends of mine call ‘naïve rightanswerism.’ I believe that original meaning textualism yields single, correct answers to legal questions—at least sometimes. Sometimes that single right answer is a determinate point. Sometimes the right answer to a constitutional question is that a text legitimately bears a range of meaning, a number of possible applications, and it is hard to privilege one over another.” Michael Stokes Paulson, A Government of Adequate Powers, 31 Harv. J. of L. & P.P. 991, 995 (2008). Neither Paulson nor I contend that every case is answered by the extant legal materials. Indeed, I agree with Judge Posner that sometimes the sources of law run out before a case is decided; I take it Paulson does, too, but the three of us would differ on how often it happens (Posner says all the time; I say rarely; and I won’t speak for Paulson) and what to do next (a subject too voluminous to get into here).

At any rate, the upshot is that some areas of American law are, for better or worse, judge-made. Although there is no general federal common law, as Erie teaches, “Congress, content with the passage of generally worded statutes, has left a great deal of policy-making to the courts through the process of case by case decision-making.” Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996) (Ripple, J., concurring), overruled, 522 U.S. 3. Antitrust law, for example, which was at issue in Khan, is very little but judge-made law; admiralty, too, is traditionally a common-law endeavor, hence why you’ll find Scalia and Thomas accepting in an admiralty case, as an exercise of discretion, a standard that they have rejected in the context of due process. Compare Exxon v. Baker, 128 S.Ct. 2605 (2008), with BMX v. Gore, 517 U.S. 559 (1996) (dissenting opinion of Scalia, J.)

Nevertheless, those cases where there really is such ambiguity that the case can fairly come out either way, and those areas where the judge has policy discretion for other reasons, are the exception, not the rule. See ¶1 of my comment here and materials cited therein. That is why, for example, it is so absurd to hear the statistic that Sotomayor agreed with her colleagues 95% of the time being trotted out to show how moderate she is; that figure is the norm on a busy court of appeals. To claim that such cases and areas are or should be the rule surrenders to the cloying, repellant cynicism of the soi-disant “legal realists” – the kind of thinking expressed in the Leiter passage that Althouse approvingly quoted yesterday. The legal process school chopped this particular monster’s head off years ago, but, like the Lemon zombie of Scalia’s Lamb’s Chapel dissent, it keeps rising from the grave–perhaps because decapitating a creature that was brainless to begin with is little impediment to its shuffling abroad. That immature rejection law (and that’s all legal realism is, by the way – an admission that you don’t take law seriously qua law) is bad enough to advance as a pet theory, but it is all the worse to pretend that it is a descriptive reality and to claim that all judges are actually following its contours, knowingly vel non.

Judges interpret the law, we agree. Sometimes the law is fairly susceptible to more than one interpretation or construction. But in most cases, the range of permissible interpretations allowed by the authoritative materials–the text (meaning the whole text, which includes the structure), precedent, and policies that are apparent on the face of the statute; see generally Wisconsin ex rel. Kalal v. Circuit Court, 681 N.W.2d 110 (Wisc. 2004); Antonin Scalia, A Matter of Interpretation (1997)–is not so broad as the litigants, and sometimes the judges, would have you believe.

Anyone who thinks that Bush v Gore was not judicial activism and was sound legally (or even logically consistent to their own opinions) IMO is deluded. That Conservatives cling to their belief that their view of the law is pure after that case are just deluded IMO.

I don’t want to get into another fight over Bush, because I don’t think they’re useful, but I’ll say a couple of things. We all agree, I think, that the per curiam was spinach. Nevertheless, the case was correctly decided, for the reasons given in the Chief’s concurrence. That this wasn’t sexy enough for Justice Kennedy — he wanted something more glamorous, something the man in the street could get behind — is unfortunate, but isn’t sufficient reason to dismiss the case out of hand. The right result for the wrong reason is suboptimal (“An opinion that gets the reasons wrong gets everything wrong….” Antonin Scalia, The Dissenting Opinion, 1994 J. Sup. Ct. Hist. 33), but there’s wisdom in Justice Black’s flexibility: “If William Brennan … could get five votes for the right result in a given case, Black would take the victory. Playing the game perfectly is very nice — but even more important is winning the big ones.” Akhil Amar, Hugo Black and the Hall of Fame, 53 Ala. L. Rev. 1221 (2002).

Two lines of attack are usually advanced against Bush. The first says “the conservatives just voted for the result that favored their preferred candidate!” But one could say precisely the same of the liberal bloc; on the face of it, then, there’s no reason to think anyone acted in any worse faith than anyone else, so we can and perhaps should assume that all acted in good faith. The second and slightly more sophisticated version of this attack goes: “ah, but the conservatives usually defer to the states, and here they didn’t!” Two responses. This caricatures the conservative bloc, which has stood for federalism, not states’ rights. Federalism does not mean that the states win in every case; rather, it respects that the Constitution created two overlapping spheres, state and federal, and seeks to balance their respective interests. See Younger v. Harris, 401 U.S. 37, 44 (1971); cf. this post. In Bush, the Chief Justice noted that federal law took primacy. It is simply not true that this is in tension with other cases where Rehnquist had sided with the states. And here, too, a similar attack could be levied at the four: since when has the left been keen to defer to the states?

The best commentaries on Bush v. Gore — those by Prof. Althouse and Judge Posner, see Ann Althouse, The Authoritative Lawsaying Power, 61 Md. L. Rev. 508 (2002); Richard Posner, Breaking the Deadlock (2001) — rightly acknowledge the complexities and difficulties in the case. The commentaries that caricature the case generate heat but little light, revealing more about their authors’ prejudices than the case itself.

To give you one more shot. I think we all tend to agree with people who agree with us and disagree with people who don’t. I really don’t think there is anything earth shattering about that view. Do you differ?

I think there is a plus in having a diversity of opinion. I get the idea that some would prefer a situation where not only are they in control but that no one else has any voice.

A single line about wanting balance doesn’t change the message that you’re actually sending.

I don’t necessarily want the “best legal minds.” People who excel in narrow intellectual disciplines are not necessarily the wisest people to choose. And yes, I do want wisdom. And empathy. And realism. And pragmatism.

I don’t want a legal monk focused to the exclusion of everything else on arcane details of law without reference to the real world. The real world is a valuable corrective. Another way of saying that experience is useful, and not just experience with parsing legal decisions.

I want justices who understand the real world implications of their decisions and will, when faced with extraordinary situations, take a second look at their interpretations of law, reconsider whether they were right in holding to a line of argument that may have disastrous consequences in the real world.

I think this comes up probably no more than once or twice in a justice’s perhaps 40 year career. But I think when the time comes, and you’ve reached the conclusion that under law separate but equal schools are just dandy, or that slaves really are just property, or Japanese Americans can be dispossessed and interned, you might pause, examine the world outside your laser focus, and reconsider.

Exiled, you could also stand to lose some of that sarcasm too.

I said I think it would be good to hear all sides. You seem to think an echo is preferable. When Republican nominees have gone before the court they have said their backgrounds were beneficial. When a Democrat does it they are called a racist. Anyone honest would say that their past has some bearing on their present.

There have been many people on the Court that would not have been considered the best and brightest legal minds in the country. Likely from both parties. Both side seems to think that a position on abortion is a major prerequisite. Are you saying that that is more important than ability? Having a court that sees things from a number of perspectives is IMO a good thing. Unless you have a way of knowing the top 9 legal minds in the country we will always use the totality of a candidate to pick one.

The bad thing about saying majority rules and screw everyone else is that the majority is changing and you will likely have to change your view. I won’t.

I find it interesting that the party that talks about qualifications most loudly and is against racial and sexual preferences and quotas and says that hollywood and celebrities should shut up is also the one who continually seems to go there as much or more as anyone else and elects or appoints them.

I’d like them to be very qualified and reflect our society. Or are you saying there are no smart anyone but white men? (and lately Catholics) There are many people from many walks of life who are likely qualified.

Me, I’m a qualifications guy myself. The court could be full of one-legged Asian-American transsexuals for all I care, as long as they’re the best and the brightest legal minds the country has to offer (regardless of their one-leggedness, their Asian-Americanness, and transsexuality-ness). Or does ethnicity trump ability? That can’t be true, cuz that would sound awfully, you know, racist.

and we’re all black. That was my point. Try reading for comprehension, I do think I pointed this out quite clearly.

Pot meet Kettle. Guess what? You’re black.

My guess is that you think every decision that sides with you is brilliant and every justice who dissents from one you agree with is wrong. I think more shades of opinion feed an open mind. Many voices are never heard and I don’t think that is good for the country. Perhaps you are of the belief that things should just be good for you.

Anyone who thinks that Bush v Gore was not judicial activism and was sound legally (or even logically consistent to their own opinions) IMO is deluded. That Conservatives cling to their belief that their view of the law is pure after that case are just deluded IMO.

To simplify
I think a Scalia is important to a balance on the court. I just don’t think the whole court should be Scalia.

There are many in this society that are not represented from the making of laws to the interpretation of them. The group that doesn’t have a logical claim on that complaint are privileged white men. The future is going to be a scary place for you.