Quis Custodiet?

by John Derbyshire

I attended a grand black-tie bash last night: the Manhattan Institute’s annual Wriston Lecture, delivered this year by SCOTUS Associate Justice Samuel Alito.

The lecture was general and professorial — as of course it had to be, given the speaker’s position — but very well delivered. Alito came across as an agreeable fellow with an interesting and well-stocked mind. I was left, though, contemplating the odd nature of jurisprudence as a science. It is so strangely — and, I am sure, deceptively — accessible. I could follow everything the Justice was saying, and turn the notions over in my mind, and argue with myself (and my dinner companions — my date for the evening was a law professor) about them. This would not have been the case if Alito had been one of the nation’s top nine microbiologists, say, or philosophers, or gunsmiths.

I now better understand, at least, the ease with which a justice’s personal inclinations slip into his or her decisions. All the modes of judicial approach that Alito sketched for us seem to end at the same point: Who gets to decide? Like Alito, for example, I incline strongly to the “deferentialist” school of judgifying: Acts passed by properly constituted legislatures should be let stand if there are rational arguments in their favor. Alas, there is no universal standard for rationality: your conclusions depend on your premises … etc., etc. So who gets to decide?

I must say, though, the general level of spirits in the room last night was impressively high. Conservatives are in fine fettle this fall, even in Manhattan — I’d venture to say, chomping at the bit.

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