Insouciant Empirical Legal Research: A Rejoinder to Thomas

My position is not, and has never been, that empirical investigation of constitutional law is impossible. Nor am I saying that some investigations aren’t useful. For example, in my own research, I would find useful an empirical investigation designed to determine whether courts or legislatures have a better record in protecting individual rights from the Republic's inception. My point is that in this type of investigation nothing more than rough and ready hypotheses can be verified more or less. Conceptual conundrums abound. One such conundrum arises because whenever the government protects an individual’s right, it simultaneously fails to protect someone else’s right. My right to free speech conflicts with what is arguably your right to be free from racial slurs. A woman’s right to reproductive autonomy conflicts with what some believe is the right to life of a pre-born person. Your right, as an American citizen, to remain in your home might conflict with my right to be protected by government from invasion from a foreign nation. Call this the problem of the correlativity of rights. Since conflicting rights are ever present, protecting one person's right usually involves violating someone else's right or at least what someone else thinks is his or her right. That said, in the spirit of seeking agreement, let’s overlook this problem for now and settle on a relatively uncontroversial class of rights, say, the rights stated in the Constitution and caselaw. We might not have too much trouble identifying “courts” and legislatures,” or on what counts as "protecting rights.” So relatively uncontroversial hypotheses might be verified cavalierly by rough and ready or insouciant empirical investigation. This process is not unproblematic; however, it conceals potentially divisive fissures. But let’s grant that relative agreement might be reached.

Far more problematic is Thomas’ description of his (and his co-investigators) study: “we purport to find (objective) empirical evidence that when Supreme Court justices take more ideological positions, they depart from precedents more, and this happens with both liberal and conservative opinions. I think this is a very interesting result—it suggests an essential compatibility between the rule of law and relatively apolitical, non-ideological, maybe even "objective" judging.” But does it? Just what counts as “the rule of law”? Consistency? Mere consistency? Consistency with what? Precedents and statutes only? Does the rule of law refer to underlying political or moral principles which best explain and justify constitutional decisions? Just what does the "rule of law" mean? The answer is not so simple. The idea of the rule of law is an essentially contested concept in political philosophy. Thomas' choice of definition is critical here. According to some definitions of “rule of law” Thomas’ results will be unsurprising, perhaps even circular. If the rule of law is consistency with precedents, “ideology” must not smuggle in anything that smacks of or implies novel, idiosyncratic values. If it does, then we know the results before we investigate. Yet, one indicia of an ideological commitment is a novel, controversial rejection of the status quo. Consequently, of course ideological judges will depart from precedent. Under this interpretation that is just what "ideological judging" means. Perhaps Thomas provides an independent definition of "ideology" in order to avoid circularity. But it is absolutely essential to provide intuitively plausible definitions of critical terms in an empirical study, intuitively plausible, that is, relative to the constitutional conceptual framework, even at the price of losing some “objectivity.”

Let me forgo pursuing this line of argument now and instead identify points of agreement between Thomas’ view and my own. I appreciate Thomas’s remark “that much useful work can be done based on agreements about terms that may be contestable, but need not be contested for present purposes.” In my view, this follows Rorty’s recommendation to adopt an insouciant attitude to all discourse and inquiry from science to poetry. We seek agreement, even if only temporarily and sometimes only for certain purposes. Within that agreement we ask and resolve certain questions. When the current paradigm fails to settle additional questions we modify or abandon the paradigm and sometimes we abandon the old questions along with the old paradigm. Of fundamental importance, however, is that we follow this pragmatist strategy with humility. What we should abandon is the idea that empirical investigation of constitutional law is somehow “harder,” more muscular, or more authentic than traditional legal scholarship. Adopting an insouciant attitude toward empirical research--shorn of such seemingly tough-minded concepts as objectivity, context-independence, and transparency--makes Stefanie Lindquist's point about the complementarity of approaches in her September 17th entry more plausible.