The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Saturday, July 7, 2012

Judge Posner sure can calculate that utility function
Tom Smith

Here is Judge Posner telling Nina Totenberg that he's not so conservative anymore because conservatives have gone all goofy on him. His other point is that conservatives should be careful about criticising Chief Justice Roberts because this might make Roberts mad at them and if he gets mad at them this will likely make him less conservative. A pragmatic way to look at it. I cannot resist observing that Posner's lament that conservatives have gone all goofy comes from the guy who proposed setting up a free market in babies. My point is not so much that a free market in babies would be a bad idea, though I do think it would present many practical and some moral difficulties. Rather it is that often goofiness is in the eye of the beholder.

The thing I really notice about Judge Posner is that when Reagan was in power and riding high, Posner sounded like a conservative. When Obama was elected, Posner sounded much more like a liberal and even wrote a book about the failure of capitalism. I suspect the best thing conservatism could do if it wants Posner back is to elect Mitt Romney. Just one more reason to vote for him, I guess.

This probably sounds like I am saying Posner is a hypocrite, but I'm not. Indeed, he is far, far more intellectually honest and transparent than most public intellectuals. He says he's a pragmatist and I take him at his word. He's a utilitarian and he wants to be in the game. He's not one to get hung up on principles some say should be carved in granite that rests on a bedrock document more than 200 years old. Still, give me the judge who still tears up when he hears the Declaration of Independence read.  I guess that makes me a goofy conservative.

What makes an intellectual hero? We've got one in the news this week -- Peter Higgs.  I hope he gets the Nobel Prize.  It would honor the Prize to have his name attached to it.  What makes Higgs a hero?  When he was just a young man, he and a number of other physicists reasoned that (and here I rely on the popular prints) a field permeated the entire universe and (somehow) relatedly this gave rise to these tiny, almost undetectable particles that gave everything mass -- what came to be called the Higgs Boson.  And now the boffins some 50 years later have discovered the thing.  Higgs was right.  Yet when he proclaimed his idea he was mocked.  Many famous physicists told him he was deluded. So why did Higgs persist in spite of everything? I think it must have been because he thought he thought he was right; because he thought that was how the universe really is. And it turns out he was correct. Take that Heisenberg.

This I suggest is the same reason why people who really believe Roberts got it wrong should say so, and many of them have. I'm not sure Roberts was wrong, but I admit I have an increasingly rather ill feeling about his opinion. There may be some sort of argument for shaping your views, or what you say they are, for the sake of political advantage, which is not exactly the same thing as shaping them out of fear of what the powerful may think. I have been reading this remarkable essay by Paul Rahe about the primacy of politics in ancient Greece. The Greeks had a word for those who were afraid to voice their opinions on public matters in the public space:  slaves.

But, happily, we are not slaves.  We still have a constitution, for now. I do not think people should not say what they think for fear of offending Roberts, or anybody else, not least because that would be a slavish thing to do.  And half the time political calculations about what effect your words will have go awry anyway. Just speaking what you believe is almost always the best policy and all but certain to be the most worthy one.

I hope Roberts wasn't just trying to calculate things by saying what he thought it was politically best to say the constitution meant. For many of us, that is an approach that was never much in fashion and we like even less lately. If that's something Roberts didn't factor in sufficiently, well, too bad for him. The reputations of the powerful are the hostages we hold to keep them in line with our laws.  Fearing what a judge will do, fearing to criticize him if he does the wrong thing -- that is no way for Americans to live.

See this also at Prof. Bainbridge's blog. Also Instapundit.

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