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May 09, 2016


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Patrick S. O'Donnell

Perhaps this is one reason why Rawls, in Political Liberalism, wrote that "in a constitutional democracy with judicial review, public reason is the reason of its supreme court.... the supreme court is the branch of government that serves as the exemplar of public reason." As for how the "hoi polloi" might incarnate the virtues of deliberative public reasoning (and thus fortify our conceptions of democratic legitimacy), see Robert E. Goodin's Innovating Democracy: Democratic Theory and Practice after the Deliberative Turn (Oxford University Press, 2008). Finally, for an intriguing non-elitist epistemic argument for democracy based on the idea of "collective intelligence" (rather than, say, the 'folly of crowds' or the 'rule of idiots') or "democratic reason" not dependent upon unrealistic expectations for widespread "participatory" democracy (but beholden to Athenian democracy, philosophers like Spinoza and Condorcet, and our foremost democratic theorist, John Dewey), please see Hélène Landemore's Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (Princeton University Press, 2013). Landemore's book in fact enables us to consider the possible if not probable reasons why a supreme court may fail to incarnate public reason in the deepest and widest sense.


Please describe how Citizens United went against clear majoritarian sentiments .. (remember, the question in oral argument about banning books (answer: yes)? about putting the news corporations out of business or issuing licenses for "journalists," etc.")? Please don't equate demagoguery with "clear majoritarian sentiments"!

(One wonders, what does the term "progressive" actually mean in your discourse?)

"But if a claim does check off the right doctrinal boxes, then judges have to listen -- they have to provide a hearing, they have to provide reasons -- even if the claim in question is alienating, difficult, or uncomfortable."

Obviously, not at the Supreme Court level, the level you seem to be most enthralled by (e.g., references to the Warren Court, which only serve, in your telling, to invalidate the bigotry and prejudices that "progressive legal academics love.")

Your overall theme - that folks who can't be heard in the body politic are heard, sometimes, by courts - is basically too limited in practical reality and validity, IMHO, to be persuasively asserted.

What you might more plausibly argue is that, sometimes, folks whose claims have been heard and rejected by the body politic (or accepted, but to an insufficient degree in the view of those claiming relief) can be heard and find relief in courts.

It is usually in these instances that courts create political discord, with some recent notable exceptions that might lead some to come to the wrong conclusions about a general governing principle.

Orin Kerr

Are you arguing that being forced to listen to an argument can open a decider to persuasion, that being forced to listen is useful because it creates a forum in which the issue is debated that can lead non-deciders to persuasion, or both?

David Schraub

Both. The former is true because nobody has ever been persuaded by an argument that they didn't hear (which creates a very strong incentive not to hear arguments where one would rather not revise a position). The latter can be overstated (since law folk tend to vastly overestimate the degree to which non-lawyers pay attention to legal decisions), but I do think there is some trickling effect when legal elites consider cases and opinions and think about arguments that they otherwise perhaps would not have thought to consider.

And note that the former can cascade to the latter. If one judge (decider) rules that gay marriage is a constitutional right, that forces non-deciders (everyday citizens and politicians) to grapple with that issue in a big way. This was the functional effect of Goodrich -- it's not that the opinion persuaded everyone or even a majority of Americans at the time, but it did signal that gay marriage was an issue on the debating map, and that had huge ramifications for the gay rights movement (which is not to say that getting an issue on the debating map necessarily leads to winning, but it's clearly a step forward from it not functionally being something that was an issue of major public debate).

Enrique Guerra Pujol

Being forced to listen to the other side and being able to update one's priors are not the same thing.

Orin Kerr

David, thanks for the response. I wonder if SSM is an exceptional case, though. There are lots and lots of arguments made to courts that they very quickly reject that no one ever discusses. And there are lots of arguments that courts take seriously, and even agree with, that lead to very little public discussion. (Think the polygamous marriage decision, which was received very differently.) More broadly, the cases that come to mind will be the cases that we can easily recall, and those will be the cases that led to tons of discussion. While there are certainly a few examples of what you say happening, I'm not sure how fair it is to generalize from those few examples.

David Schraub

Orin: I'd agree that SSM is a particularly strong example (though I'm genuinely curious about where polygamy will go in the next 20 years. Already I've seen some branches of legal academia take it a lot more seriously than they did even ten years ago). It's obviously right that there's a selection bias (though I'm not sure how far that argument takes us comparatively -- surely, the vast majority of claims and arguments presented in non-legal fora also go nowhere and are quickly forgotten). At the very least, it seems like there needs to be some sort of social movement or social body that is there to pick up the conversational ball post-judicial ruling. But I think it makes sense to say that, for those groups, litigation can be a sensible part of their overall strategy of public persuasion as a means of getting the ball rolling.

The other thing I'd say is that, at a microlevel, civil litigation can be thought of as a chance to force people to listen to disputes which are probably too petty to grab anyone's attention in private dialogue. Maybe nobody wants to hear me talk about how my boss fired me due to my religion or how my neighbor is tapping into my well water. But -- assuming the doctrinal boxes are checked -- 12 members of the community are pretty much obligated to listen to my claim and deliberate over it. And there's a sense in which that's pretty cool, I think.

Orin Kerr

David, to to be fair, 12 members of the community are obligated to consider it only if it gets to the jury -- which is vanishingly rare.

David Schraub

Indeed. One implication of my argument is to be wary of doctrinal developments that are too quick to prematurely toss cases out of court (e.g., Twiqbal) because they undermine a unique epistemic virtue courts have as against other sites of deliberation.

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