Guest Post: Eric Hines on Justice Kennedy’s interview on the popular acceptance of controversial opinions and dumbing down legal education

Eric Hines is a regular reader and provides a lot comments. He is smart and very conservative. Eric is a former officer in the United States Air Force and a systems engineer. He is also a talented blogger and writer. In a Kirkus review of one of his books, the reviewer described Hines’ effort this way: “An informed, articulate conservative manifesto that will shed light even for those who disagree.” While Hines has no formal legal training, many times his reasoning is both simpler and superior to those of us who do.

Eric sent me an e-mail, and, with his permission, I reprint it in full below (with minor edits). It is interesting and provocative.  On the popular acceptance of Supreme Court opinions, he urges the Justices to explain their controversial opinions in speeches to average Americans, noting that regular people are not as dumb as Kennedy apparently believes. At the end of the post, he gives an informed lay person’s opinion about shortening legal education by asking one penetrating question.

Here it is:

Following is an excerpt of an excerpt of an interview with Justice Kennedy [on the Wall Street Journal blog, here]:
     Q: You are in the majority more than any other justice, meaning that you cast the deciding in vote in most of the controversial cases. How do you view that responsibility?
     A: When you take that vote and it’s a difficult case and, say you’re in the majority, 5-4 or 6-3, there are not a lot of high fives and backslaps. It’s a moment of silence as you realize that in a difficult case, you are going to have to write an opinion that commands the allegiance of the polity. We are judged by what we write. We don’t go around giving speeches about how great our opinion was. If it is a difficult opinion where half of the country is going to be in strong disagreement, sometimes more than half the country, we draw down on the capital of trust.

I hope I’m misreading him.

Aside from the widespread meme that he’s “the deciding vote” (what are the other four Justices, jellyfish along for the ride?), “write an opinion that commands the allegiance of the polity?” Popular acceptance is the standard rather than what the law requires? “…half of the country is going to be in strong disagreement…we draw down on the capital of trust?”

How does he think that works? The American people, in the aggregate, aren’t as dumb as he apparently thinks we are. True enough, an opinion might cause an uproar, but if we see the Court ruling on the basis of law–even if we don’t like the outcome–we’ll have more respect, more trust, in the Court than if we see it ruling on the basis of the political winds.

“We are judged by what we write.” Indeed, they are. And with controversial opinions, it would be useful if they did go around giving speeches explaining their logic.

[Kennedy is] right, though, on an earlier response to a question about addressing the cost of law school by shortening the curriculum: how would dumbing down law school address anything useful?

Eric Hines

RGK

3 responses

  1. You are correct, sir: That Conservative makes an excellent point. Offering clear explanations of rulings in the public square should be part of the job description.

  2. Thank you for the plugs, Judge.

    If I may, I’d like to expand on one of my points. I hold that a judge must decide, where constitutionality itself is not the question, first, the law’s legitimacy (that is, is it constitutional), and if it is legitimate, he must apply the law as written and not as he thinks it ought to be written, or (especially in deciding an overt constitutional question) IAW an “updated interpretation” of what the text is. The Constitution, for instance, lives through Article V and the people whose document this is, and not through…evolutions…from the bench.

    This will lead to controversial rulings, whether on the Constitution or on the Legislature’s law. This presents another opportunity for a Judge’s speeches explaining his rationale. The existence of the public uproar over a ruling is evidence that the law is lacking in some way, or that a clause of the Constitution no longer governs adequately a modern society. Those speeches could be used to urge the audience to exercise their right–their duty–to instruct their representatives in government to make the relevant changes to what is, in the end, those people’s law and if the existing representatives will not, to elect others who will. This extends to controversial Constitutional rulings: the people have a similar right and duty to force a Constitutional convention to push through an Amendment. On that latter, We the People have been doing so, in fits and clusters more than a simple average implies, a little more often than once a generation. Which rate seems about right.

    Many of these efforts will fail; on many questions, we are a divided society. But the discussions will be useful, anyway. More importantly, even in the division, the stability of the law as written is far better than the chaos of ruling with the political winds. When We the People reach our consensus, we’ll instruct our government according.

    That’s highly idealistic, and the practice is full of conflict, politicians’ personal interests, and failure. But with idealism, on the whole, substantial justice–and social progress–is made.

    Eric Hines

  3. 1. I don’t think that Kennedy is saying that popular acceptance is the standard for decision-making. Rather the opposite, actually: I think he’s talking about the challenge of writing a persuasive opinion to support a decision with which many people will instinctively disagree. His point, I think, is that in a difficult case, the author will have to write an opinion that persuades people that the conclusion was nonetheless correct.

    2. The other four judges in any given majority aren’t “jellyfish,” but if the court is split 4-4, the swing vote is perfectly entitled to regard that vote as decisive, because it is.

    3. I don’t like to be cynical, but we live in political times in which very few partisans are willing to accept the legitimacy, much less the propriety, of results they disagree with. Most people are, sadly, poorly-informed by media sources that have very little interest in being comprehensive or probative. I’m reminded of this: http://www.theonion.com/articles/area-man-passionate-defender-of-what-he-imagines-c,2849/

    4. There’s a very interesting debate in the academy about that third year of law school; it’s less about “dumbing down” than a recognition that law school as a whole doesn’t adequately prepare students to practice, and that the third year in particular is rather redundant. The question is whether the costs of the third year of law school confer a benefit that’s worth the money.

    To oversimplify, the law school curriculum can be divided into two broad categories: doctrinal courses (e.g. contracts, constitutional law, etc.) and “skills” courses (e.g. legal research, legal writing, trial practice, clinic, etc.) It is fair to say that traditionally, the doctrinal courses have been prioritized. But the purpose of doctrinal courses isn’t to teach students “the law.” It is to provide students with a broad background and understanding of legal concepts, to enable them to research and understand the more particular legal issues that will cross their desks in practice. By way of comparison, consider medical school: the first couple of years, students study anatomy, biochemistry, etc. This isn’t to learn everything they will ever need to know in practice–it’s to establish an understanding of “how things work” and a vocabulary for communicating about them.

    After three years of that, a student graduates and takes the bar exam… which they study all summer for, because law school really doesn’t prepare you for the bar exam. And then you start work, which neither law school nor the bar exam really bear much relationship to.

    If you think that sounds dumb, then you’re getting to what Justice Kennedy is talking about here. There’s an increased emphasis on skills training in law schools–trying to prepare students better for actual practice, rather than another year of studying theory. But some have suggested that rather than trying that (particularly given how crushing law school debt can be), the curriculum should just be shortened to two years and that third year could be spent learning on the job, or in some kind of internship like medical students, or anyplace but taking specialized doctrinal courses that bear little relationship to the demands of practicing law.

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