Tag Archives: SCOTUS

Those who don’t know anything love the…

Ignoratio.  Charles Cooper, arguing yesterday to defend California’s Proposition 8 before the Supreme Court, embraced the old strategy of invoking unknown harms to come from allowing gay marriage. [Transcript HERE] Justice Kagan asks Cooper if allowing same-sex marriage hinders state interests. Cooper responds:

]Your Honor, we — we go further in — in the sense that it is reasonable to be very concerned that redefining marriage to — as a genderless institution could well lead over time to harms to that institution and to the interests that society has always — has — has always used that institution to address.

Kagan then asks Cooper to clarify.  She asks:

What harm you see happening and when and how and — what — what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?

And then Justice Kennedy jumps in to encourage Cooper to concede that there are no actual harms done:

Well, then are — are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you’re conceding that.

But Cooper won’t back down.  Just because he can’t name any harms or articulate how allowing gay marriage would cause heterosexuals not to marry, or have kids, or raise them right… won’t prevent him from saying bad things will happen.

The first one is this: expert acknowledged that redefining real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.

But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of — of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.

First, a rule about properly run ignoratio.  The argument from ignorance runs that because we don’t have evidence that p, not-p follows.  There are two related conditions for using the form appropriately.  In one case, it’s right when the principle that were p true, we’d already have clear evidence for it is true.  For some things, absence of evidence is evidence of absence.  The second condition is when those arguing for p have the burden of proof — that is when p’s being false clearly yields worse consequences from not-p being false.  So when there are known harms to come from one error (taking p to be true when it is in fact false) but none clearly coming from another (taking p to be false when it is true), p has the burden of proof.

Now, take the SCOTUS case here.  Who has the burden of proof?  It seems, given the way the case is being handled, that the question is whether  Proposition 8 denies rights to a group of people.  If it does, then people have their rights stripped from them if the court strikes down the prior rulings holding it unconstitutional.  If it doesn’t, then if the court upholds the prior rulings, then rights have been extended in a case where it’s not necessary.  Those are the two errors possible.   Which is worse?  The former.  Waving one’s hand and trying to imagine worse consequences doesn’t change that.

Enough about fallacies to close.  Now a moment about moral reasoning.  And conservatism.  I simply abhor the way the conservatives argue about gay marriage.  John’s last post shows the deep mendacity of the movement, and this moment in front of the court is another case of the moral cowardice shown by those against marriage equality.  Since when do conservatives think that sacrificing the rights of a few to protect the bounty of the many is really acceptable?

Political fights

I'm trying to find a charitable interpretation of this comment by George Will on This Week with David Brinkley (via Crooks and Liars):

MORAN: Let's — let's go across the street from the Congress for a moment. There was a historic decision this week out of the Supreme Court of the United States on the First Amendment, the court holding that the campaign finance reform prohibition on corporations and unions using the money from their general funds to support or oppose candidates, that's a violation of free speech. So is this a vindication of the First Amendment, or is this a surrender to the plutocracy?

WILL: Vindication, because the court recognized the obvious, which is that you cannot disseminate political speech without money. And, therefore, to restrict money is to restrict the dissemination of speech. To that end, they have freed up the amount of money that will be spent.

Now, some people are saying, oh, corporations, that means Microsoft will be buying ads. Microsoft's trying to sell software. They're not interested in getting into political fights.

What this really emancipates are nonprofit advocacy corporations such as the Sierra Club. I pick that not at random because the Sierra Club was fined $28,000 in Florida last year for falling afoul of the incomprehensible, that-thick set of regulations on our political speech.

I'd reject the first biconditional.  But I think there's something obviously wrong about the claim that "Microsoft is not interested in getting into political fights."  Well, ok, they're not interested in that as their primary mode of business.  But Microsoft, and oh, I don't know, the Banking Industry or the Oil Industry or the Defense industry are interested in conditions which are politically favorable to them.  That's their business.  Am I missing something?


When you don't have an argument, you can always just beg the question:

As a young senator involved in judicial nomination debates, Obama showed no deference to presidential choices. Instead, he developed a theory that Supreme Court justices should favor socially unfavored groups. He opposed John Roberts for using his skills "on behalf of the strong in opposition to the weak." He criticized Samuel Alito for siding with "the powerful against the powerless." Obama made these distinguished judges sound monstrous because they stood for the impartial application of the law.

That's Michael Gerson.  The jeune Obama has obviously alleged that the judges were "partial" to the interests of the powerful.  Obama is not, in fact, referring to Roberts's behavior as a judge.  But that's another point.  If one reads the whole passage (and not just the heavily elided selection featured on right-wing blogs), Obama addresses Gerson's "impartial application of the law" objection:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts. 

The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

As I tell my Critical Thinking class, it's just not that hard.  I just don't understand why Gerson can't do what every phil 101 student must do in order to earn a C.