I suppose my feelings on this matter are largely colored by what I am reading now that has amplified my anti-intellectual streak. Again, I do not know Kagan personally and have not taken the time to read her law review articles. I will, however, go out on a limb and say that if she at any point served as the HLS dean, that my personal assessments of her and her method jurisprudence are probably not that far off.

I remember in high school in a class called "Theory of Knowledge" (a high school epistemology course) our teacher instructed us to rank the "7 ways of acquiring knowledge." I don't remember them all precisely, but, some of them were: empirical observation, faith, authority, intuition, and of course logic. Unsurprisingly, logic topped most lists or finished second to empiricism. Looking back, the whole exercise seems absurd. I wish I could go back in time to rehear my own justification of my list. Because, I cannot think of a logical reason that logic should be "1". In fact, what the exercise demonstrates is that intuition is an extremely high form of knowledge. At the meta level of the exercise, it is intuition which drives how we rank each form of knowledge against each other (alternatively empiricism, but certainly not logic). But I digress--

The point is, logic (and relatedly legal rules and justifications) are not supreme high forms of knowledge. They are useful, but only insofar as a person recognizes what they are and are not. To borrow heavily from Schopenhauer, legal rules are merely knowing in the abstract what everyone knows in the concrete. Legal rules are the product of synthesizing other forms of knowledge acquisition. In every case, it certainly is easier to apply a legal rule, but, that doesn't mean the same outcome cannot be reached some other way. In fact, the legal rule is a codification and approximation of the other way.

But, sometimes the legal rule gets it wrong (as Justice Marshall says). Language (like "strict scrutiny") legal rules, these are but approximations of ways to achieve outcomes. And sometimes, these abstractions get the outcome wrong (or in the case that the NYT brought up, the desired outcome diverges from the legal outcome). It isn't so much a paradox that the application of a rule leads to the wrong outcome but an imperfection with the creation of the abstraction itself. Of course, this warrants an entirely different discussion. I only mean to point out that legal rules are imperfect beings, created abstractions designed to imitate other forms of reasoning.

Which brings me to why I don't think we need another intellectual on the court. Applying rules is fantastic and I'm sure that a Harvard, Yale, or Columbia education is fantastic in teaching one how to apply legal rules, create legal rules, etc. To be sure, I want a justice who knows how to navigate legal rules and make good arguments. But to have 9 people good at applying something so disjoint from the other forms of reasoning makes me a little queasy. I worry when people get too absorbed in abstractions, especially when they are the very people who create abstractions. Perhaps I am a little (or a lot) influenced by Eben on this, but it did not take me too long in Con Law for me to realize that Marshall was one of my more favorite Supreme Court justices. Taking rules too seriously leads to bad outcomes, but only he seemed to realize this. And, as Taylor said, I'm afraid we are just going to end up with 9 bureaucrats who are really good at applying, creating, and bending rules.

-- MatthewZorn - 13 May 2010

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