The Corner

Not Rocket Science (Nor Any Other Kind)

A reader who is very well qualified to opine on this:


I think your observation that jurisprudence is an “accessible” science (I would caution you that framing law as a “science” was hallmark of early progressive thought) is entirely accurate. There is nothing “deceptive” about it, either (although I’m not sure whether you added that aside with tongue in cheek).

Starting out as a young law student I was completely intimidated by the aura of the “law” and hoped that I would have the intellectual chops to succeed in that field. I was miserable part way through my first semester because it all seemed so simple (yes, yes, there is a lot of work, etc. but the concepts were easy to grasp). Surely, I was missing something. The grades on my examinations, however, indicated that I was not missing anything (at least, not much), and indeed, catapulted me to the Law Review and a coveted federal court clerkship.

To this day, I’m amazed at all the seemingly bright students in my class that never seemed to “get it.” I am convinced they made things more complicated than they needed to be because of an expectation that things had to be difficult. Indeed, I think it is a hallmark of lawyers to make things more complicated than they need to be — part of it probably to create a mystique that gives more apparent legitimacy to the profession and part out of a preening intellectualism, and I think it has long been this way with attorneys. But I think with the modern legal profession there is something more sinister going on. The “complexity” of the law (specifically of constitutional law) is in far too many instances merely a smoke screen for those that would use the law to achieve political ends for which our legal system was not intended and for which there would be no popular support. If Justice Blackman had stated in his Roe v. Wade opinion that “there is clearly no right to an abortion protected by the Constitution, but a majority of us justices feel there ought to be,” clearly that ruling would have no political legitimacy. Hence, we get double speak like “unenumerated penumbras” designed, I believe, to make the layman throw up his hands and say “this stuff is too complicated for me…but if the experts say there’s a right to an abortion in the Constitution they must be right. Heck, they went to law school!”

Lest there be any doubt that this explains entire libraries of modern legal jurisprudence, let me relate the story to you of Justice Ruth Bader Ginsburg’s visit to my alma mater. (For the record, I was not in attendance at her lecture, but I heard the same story from multiple trusted colleagues). A student asked Justice Ginsburg about the use of the “intermediate scrutiny” test for equal protection review. Intermediate scrutiny is the standard by which courts review challenges to government classifications based on gender. (The court uses “rational basis” review for what it calls “non-suspect” classifications, such as wealth, which is a relatively easy test for the government to pass, and a “strict scrutiny” test for “suspect classifications,” such as race, which is a much harder standard for the government to clear). The basis of the question was Justice Ginsburg’s majority opinion in US v. Virginia (the case that forced Virginia Military Institute to become a co-ed institution), in which she applied a version of intermediate scrutiny that had never been applied before and which seemed to many observers much more like a strict scrutiny review (in other words, she held the government to a higher standard than precedent seemed to dictate). The student wanted to know how Justice Ginsburg arrived at the use of this “revised” standard.

Her answer astonishes me to this day. She told those assembled that the justices do not use the analytical framework to reach the results in a given case, but that they decide the result first and then fit the opinion into the existing framework. “Science” indeed!! I have always taken this as an admission that my suspicions were right, and that the only reason constitutional law is viewed as inaccessible by the masses is because it is in the elites’ interest that it be so. We would be better off by far if the texts of statues and of our Constitution were interpreted according to their plain meaning so that all citizens could meaningfully participate in the debate regarding our constitutional norms. The point is not, as critics of Justices Scalia and Thomas constantly get wrong, that all questions would be easy or obvious. There would be hard decisions of course, on which reasonable persons might disagree. And there will inevitably be a level of complexity and esoterica in any mature jurisprudence. The point is simply that all decisions should be transparent, not layered up with made-up, extra-constitutional post hoc rationalizations for politically pre-determined outcomes.

So dive right in to Constitutional Law, Derb. If it looks like the Emperor has no clothes once you dig in, don’t doubt yourself. It’s not that you can’t see them, it’s that he’s not wearing any.

Nice to have one’s suspicions confirmed. On the matter of treating law as a science: I was using “science” in the older, more general sense of “a system of knowledge,” not implying that law meets the natural sciences at any point. (Though I’m aware of the history here, the more so since listening to Justice Alito last night: he touched on some of this. The key name in this context is the great 18th-century jurist Sir William Blackstone, who really does seem to have thought that lawyers, like scientists, were gradually uncovering universal principles. Says the 1911 Britannica: “He evidently regards the law of gravitation, the law of nature, and the law of England, as different examples of the same principle — as rules of action or conduct imposed by a superior power on its subjects.”)

So if it sometimes looks to us lay persons as though the grave robed Solons who shape our nation’s jurisprudence are just making it up as they go along, that’s probably because they are.

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