Stefanie's response is right on the money. Social scientists do shy away from such “value-laden” inquiries as a “determination of whether a statute was constitutional or unconstitutional a priori, because that is an interpretive question that social science does not address.” But our disagreement is whether value-laden inquiry or interpretive questions can be avoided even in social science. And if they cannot, whether social science so conceived is relevant to constitutional theory. Stefanie stresses that social science generally is committed to behaviorism. Fair enough. In some contexts, behaviorist analyses have value, but not in all. My initial post suggests that assessing the “activism” of justices by counting their votes is one of those contexts where, whatever its conclusions, behaviorist analyses fail to yield significant results. Take Stefanie's two examples: (1) unanimous decisions versus 5-4 splits and (2) a discrepancy between a judge’s general dispositional attitudes and her decision in a particular case. Stefanie contends that these “indicators” permit us to distinguish more activist decisions from less activist ones. Unfortunately, Stefanie's use of these examples presupposes that unanimity and the above discrepancies are relevant to judicial activism in constitutional theory. But that presupposition is precisely the disputed issue.
Deeper, more intractable differences appear to exist between our perspectives. Stefanie seems committed to such familiar dichotomies as a priori /a posteriori, fact/value, objective/subjective, universal/particular, time and context-dependence and time and context-independence. While some philosophers embrace these dichotomies, others like Richard Rorty, mentioned in Stefanie's post, do not. Indeed, Rorty wants “to blur [the] distinctions between the objective and the subjective and between fact and value.” Following Kuhn, or at least one plausible interpretation of Kuhn, Rorty contends that “’truth’ is a univocal term. It applies equally to the judgments of lawyers, anthropologists, physicists, philologists, and literary critics. There is no point in assigning degrees of "objectivity" or "hardness" to such disciplines. For the presence of unforced agreement in all of them gives us everything in the way of ‘objective truth’ which one could possibly want: namely, intersubjective agreement.” [Richard Rorty, "Sciences as Solidarity," in The Rhetoric of the Human Sciences 38, 41-42 (1987)]. Accordingly, Rorty’s “left-wing Kuhnism” and Stanley Fish’s notion of “reader’s meaning,” another theorist mentioned in Stefanie's post, insist that interpretation goes all the way down in every area of human inquiry, especially any discipline requiring the notion of “intentionality.” If that’s right, then a social scientific commitment to objectivity, universality, and time- and context-independence is an illusion or at least requires substantial modification.
More important, following Rorty’s pragmatist turn, inquiry depends on the idea of relevance, on which factors count as evidentiary considerations warranting conclusions in a particular domain of inquiry. My challenge is that since “judicial activism,” is tied to constitutional theory, the relevance of counting votes is suspect. Constitutional theory is concerned, inter alia, with judicial legitimacy and the appropriate role of the courts in republican democracy. These are terms that find a home in a language defined by notions of correctness, criticism, justification, and legitimacy. This language is, not to put too fine a point on it, a normative language. Sure we can stipulate a non- normative definition of “judicial activism” that can be examined by social scientists. But will such stipulations have anything more than a passing relationship to the idea of judicial activism as that critical term is used in constitutional theory? If normative baselines, as I have argued, are necessary to assess judicial activism in a manner relevant to constitutional theory, and if Stefanie is right about the impropriety of such baselines in social scientific research, then we must re-examine the relevance of social science to constitutional theory.
Let me conclude, before I wear out my welcome as a guest blogger if I haven’t done so already, that we have yet to address the most pressing issue pertaining to the relationship between social science and normativity, to wit: How should social scientists respond to proposals for re-ordering social institutions and practices, in this case, constitutional institutions and practices? A familiar response of political scientists, to shamelessly over generalize, is to reject such proposals as idealistic, unrealistic, or utopian. Some political scientists seem unwilling or unable to sink their teeth into such proposals. Instead, they seem to regard the discrepancy between a normative proposal and the empirical status quo as sufficient reason to reject the normative proposal. This response is deeply troubling. Rather than re-conceptualizing the empirical status quo or exploring how this status quo might be re-created—through political activism—to comport with the normative proposal, some social scientists instinctively reject the normative proposal out right. This instinct may be called, somewhat pretentiously no doubt, “the social scientific fallacy.” It is a fallacy because every remarkable proposal to alter the course of history was at one time considered quixotic. The hope of abolishing slavery, extirpating apartheid in South Africa, eliminating Soviet communism were all at one time—before they occurred of course—wildly unrealistic. The social science fallacy is committed when contemporary political reality is regarded as inevitable, and proposals that fail to reflect this reality are therefore considered futile and unworthy of consideration. When this fallacy is committed, we are all losers because it blocks the possibility of creative, imaginative revision of social reality. No better example exists than the American Revolution. No one at the time of the revolution, including many of the revolutionaries themselves, was confident that the entrenched practices of monarchy and aristocracy could be over thrown. At that time, the social scientific facts of political organization pointed precisely in the opposite direction. It was simply foolishly utopian to think otherwise. Yet, the revolutionaries did prevail. Gordon Wood puts this point perspicuously: “The Founding generation was expressing nothing less than a utopian hope for a new moral and social order led by enlightened and virtuous men.” The Radicalism of the American Revolution 189 (1992). The social science fallacy would have counseled the revolutionaries to reject the possibility of such a utopian revolution. And following that counsel would have been to the detriment of us all.