Should we require unanimity of the Supreme Court?

 

 To the Michael R. Klein Professor of Law, Harvard Law School,

Dear Randall Kennedy,

     I enjoyed your article in the London Review of Books of 21st Jan 2021, and was stimulated by it. You declared yourself to be a ‘Cynical Realist’, believing that the judges of the US Supreme Court are inevitably nothing more than politicians in robes, and are not, in fact, applying 'law' to their judgements.  But I think I am one of the other sort, whatever that is — perhaps a ‘cloud-cuckoo idealist’. 

     That is to say, I am inclined to think that, as to the justice of a disputed point, there is indeed a right and a wrong answer, definable in terms of a sufficient number of sufficiently well-trained deep-thinkers. 

     I would suggest that the Supreme Court be required to come to a unanimous decision. (Or at least a 2/3 majority.) If the justices could not discuss their way to a unanimous decision, I would have them sit there hour after hour, like cardinals at a papal election, till hunger drove one side to give way? 

    I do not think that a decision reached in that way would be worse than the predictable and apparently knee-jerk voting of the present Supreme Court? It would reinforce the claim that there exists such as thing as 'Justice'. 
Yours sincerely, 

Ian West

(See also: https://occidentis.blogspot.com/2021/03/one-justice-or-many.html   & http://occidentis.blogspot.com/2018/07/the-role-of-citizen.html.)

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Moral Choice: biology, philosophy or religion?

"Morality is best seen as a question of human biology, rather than one of philosophy; least of all one of religion."

Thomas Nagel raised an interesting question in the London Review of Books (3rd June 2021): how do we make moral choices. How do we reconcile ‘gut feelings’ with moral precepts, if they conflict? I do not think there is a real problem here, as I shall try to explain, though there are plenty of hypothetical problems. 

Nagel transfers to morality the concept of reflective equilibrium that John Rawls developed for the field of justice; a reflective equilibrium is the end-product of a reflective re-adjustment of one’s moral thoughts achieved by testing general principles against considered judgements about particular cases. The method itself could be called reflective equilibration (or simply reflection); it presumably involves successively tweaking the weightings given to the various relevant thoughts that come into one’s head until they cohere  into a consistent conclusion; one that is optimally concordant, or minimally discordant. It works if both the general principles and the particular judgements can be revised (tweaked). 

 

But Nagel’s main problem arises when there is a difference in kind between the various moral thoughts that have to be reconciled. He has been struggling for 40 years to reconcile two kinds of moral input. Some appear to come into the mind as rigid, clear-cut, laws telling us what is right, or wrong, (do not kill innocent people, do not tell lies); these he calls deontological. (They seem to be very like Kant’s categorical imperatives.)  Others actions, themselves neutral, have to be judged by their consequences as good or bad; these he calls consequential. A familiar form of consequentialism is Bentham’s Utilitarianism, seeking “the greatest good of the greatest number.” (See the very clear article on the Stanford Philosophy site: https://plato.stanford.edu/entries/ethics-deontological/.)  

Nagel struggles a bit to define in general terms these two basic kinds of moral thought that present themselves to the conscious brain. He is not sure whence these intuitions come, and seems to be a little in awe of rules-based deontological morality; are these moral instructions hard-wired in our biology, or were we brain-washed by our parents? (To believe that one’s duties come direct from God does not solve the problem, except in so much as, by giving it a name, it allows the ‘religious believers’ to stop thinking about that particular problem.) Nagel is concerned to be even-handed between the two types of moral intuition but he is also concerned to allow morality to evolve, and admits that the rules-based thoughts offer more resistance to change than the ad hoc, utilitarian, type. Take homosexuality, for example; some people cannot overcome their instinctive taboo, but society as a whole is shifting its position. 

Some people are more inclined to be deontological; others to be consequential. I confess to being a deontologist, though an atheist; I don’t seem to mind too much if the rule is silly, or wrong, but I like to obey the rule nevertheless. For Nagel, the problem becomes: how can one do a reflective equilibration when some of the arguments are stubbornly inflexible? All the bending must be done by the consequential calculations.

And what about other people; must we equilibrate their intuitions also? Nagel concedes the problem but does not answer it:  “In some sense the moral point of view requires putting oneself in everyone else’s shoes…. The question" (he says) "is: how?” 

I deal with some of these issues in my recent book (West, I.C. (2019) “God for Atheists”, AuthorHouse, Bloomington.), though my conclusions are simpler than Nagel’s. Morality (I maintain) comes from the reflective equilibration, not of one mind only, but of all minds (or an adequate sample of minds). How is that done?.  Simply by asking questions, I suggest, and listening to the answers.

I described (in 2011) what I called at the time a “Philosophical Summing Junction”, roughly as follows: 

“We spent a happy hour or so, tossing around the question of who to save in the event of nuclear war; not because we anticipated needing a plan of action, but because Dr.X had challenged the claim that philosophy can clarify the mind and solve problems. I attempted to draw the exchange to a close by suggesting that in our 60 minutes of vigorous thought and discussion we had produced between us an almost complete answer to the question of how to proceed. Dr. X said he scored it "philosophy nil, chaos 100". So I tried to explain my contention again, at greater length.” (See https://occidentis.blogspot.com/2011/09/philosophical-summing-junction.html) 

I see the human mind as capable of liking to follow rules (on some occasions), of liking to save one's own daughter before that of someone else, liking to save the lives of strangers, even of dumb animals, baulking at the killing of innocents. I suspect that most people do not really mind if their actions are right or wrong in any philosophical sense, as long as they feel right. Furthermore, they like to be judged by people who come to the same conclusions as they do on these matters, people who know what is right, defined in this way.

I think this is the basis of the ‘Michael Sandel roadshow’. He steps onto the stage and asks a question, then takes comments from the audience for an hour. I think he has the correct approach to morality. 

In summary:  "Morality is best seen as a question of human biology, rather than one of philosophy; least of all one of religion."

 One Justice or Many?

"Half of the decisions of the US supreme court are 'arbitrary'; you might as well toss a coin as go to the court."

Should the 9 judges of the USA Supreme Court all come to the same conclusion, or may they come to different conclusions? If they are not unanimous, are some right and some wrong?

      My attention was caught by Randall Kennedy's article in the London Review of Books 21st Jan 2021; in the context of the contentious nomination by Donald Trump of Amy Coney Barrett as a Justice of the Supreme Court in the last 2 months of his term as president. Should Trump have waited? Should justice depend on which president nominates the Judge? 

        Kennedy titled his piece "Cynical Realism" and claimed he was such a realist. But are we all so cynical as to suppose a Republican appointed judge will automatically disagree with a Democratically elected judge? Apparently, this type of political bias is a recent phenomenon in the USA, appearing strongly only in the last 10 years. For the preceding 2 centuries it was quite common for Republican presidents to nominate left-leaning judges, and vice versa. But of course, it becomes a race to the bottom: "If you are going to be like that, I shall too". 

In Britain, we have only had a Supreme Court by that name since 2009. Prior to that the law lords in the House of Lords served that function. Our court has 12 judges. And our system of nomination is different; a 'name' drifts up out of a professional body to the Justice Secretary, who passes it (if he wishes) to the Prime Minister, who passes it (if he wishes) to the Queen, who makes the appointment (if she wishes).  Judges are assumed to be impartial and unbiased.

It would be naive to suppose that this way of appointing judges makes the British Supreme Court judges less inclined to bias. Of course they will be biased. But it will be harder in the British system to find an obvious label for the bias (like a political party label).

In the USA, some 36% of Supreme Court decisions are unanimous (9:0), 51% of decisions have a unanimous or preponderant decision (9:0, 8:1, 7:2).   But 49% are evenly split (6:3, 5:4). That is where the problems arise. The general public are inclined to ask: "How can a decision be regarded as right when half the panel vote against it?".  A split verdict cannot justifiably be called the "Right" verdict. In fact it could be called "Arbitrary"; you could as well toss a coin and move on.  Such decisions produce a general feeling of dissatisfaction and disappointment; a feeling of cynical realism.

In Britain, though there are 12 judges on the Supreme Court, most cases are heard by only 5 judges, though occasionally 7 or 9. In all the dozen cases I picked at random from the last 4 years, the judgements have been unanimous. (And it may be added that in each case the judgement was to dismiss the appeal and uphold the decision of the lower court.)

Is it too simple-minded to think that there is indeed a right and a wrong answer? I think not. I believe the "right" decision is definable in terms of a sufficient number of sufficiently well trained and sufficiently deep-thinking judges? The Court should be sufficiently large and sufficiently unbiased to constitute a representative sample of such a "judiciary". Justices should know the case-law of previous decisions, and should be able to see the implications of a decision. Not just to the case in hand, but the future consequences of their decisions in terms of a heterogeneous society. Such a court should be asked to come, not to a majority, not even to a consensus, but to the "right" decision. As Quakers are enjoined to do in their Meetings for Worship for Business.

I would be inclined to lock the judges in a room (like cardinals during a papal election), and wait until they had achieved a unanimous (or at least a preponderant) decision. 

(See also: Capital Justice
The Evolving European Union
The rôle of the Citizen
Racists and Racism
Nationalism: the greatest enemy to human happiness

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