Intelligent Design

Crits Are Terrible Judges

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As I explained in a previous post, “Critical Race Theory,” with its denial of objective morality and neutral principles of justice, is essentially metaphysical materialism applied to race relations.  While CRT has received a lot of media attention in recent days, “critical studies” of various stripes have been around for a long time.  I was first exposed to them when I was in law school in the 80’s and learned about critical legal theory (“CLT”).  Proponents of CLT (often called “Crits”) assert that the law is just another tool oppressors use to victimize the oppressed.  Harvard’s The Bridge project summarizes CLT as follows:

A family of new legal theories, launched since 1970, share commitments to criticize not merely particular legal rules or outcomes, but larger structures of conventional legal thought and practice.  According to critical legal scholars, dominant legal doctrines and conceptions perpetuate patterns of injustice and dominance by whites, men, the wealthy, employers, and heterosexuals.  The ‘Crits’ argue that prevailing modes of legal reasoning pretend to afford neutral and objective treatment of claims while shielding structure of power from fundamental reconsideration.  Critical theorists also maintain that despite the law’s claims to accord justified, determinate and controlled expressions of power, law fails on each of these dimensions and instead law mystifies outsiders in an effort to legitimate the results in courts and legislatures.

Sound familiar?  CLT, like its sister CRT, is in its essence applied metaphysical materialism.  Only instead of race, CLT is applied to law.  Crits assert that while the law pretends to apply neutral legal principals, it does not.  Indeed, “neutral legal principle,” like “objective moral principle,” is a meaningless phrase.  In a universe devoid of ultimate meaning and objective morality, there cannot be such a thing as an objective legal principle.  There is only power and those who have it and those who don’t, and the law is nothing but a power game used by oppressors to keep their victims down. 

In practice CLT plays out in predictable ways.  Instead of applying neutral legal principles to the facts of a case, Crits decide cases by reference to which party “should” win based on whether they are a member of a marginalized group.  Crits have a problem though.  American law requires judges to write opinions justifying their decisions by reference to pre-existing legal principles.  And since “the defendant was __ [pick your oppressor: “white, male, wealthy, an employer, heterosexual, etc.”] and therefore had to lose” is not yet a recognized legal principle, Crits must pretend to apply real legal principles to reach their preordained result.  Quite often this process results in opinions that are vast word salads filled with gobbledygook masquerading as legal reasoning.  But Crits don’t care that their opinions are filled with non sequiturs and contradictions, because, as I noted in my previous post, under critical theory, rationality itself must be subordinated to the goal of achieving politically desirable outcomes.

As one might imagine, very often judges who apply CLT-type “results first, reasons later” methods bump up against other judges who apply the neutral legal principles developed over the course of centuries.  Again, Crits don’t care; they just keep coming.  The late Ninth Circuit Judge Stephen Reinhardt was one of the most famous judges who routinely ignored binding legal principles in arriving at lawless outcomes.  The Supreme Court reversed him many times, and when this was pointed out to him, he famously replied, “they can’t catch ‘em all.”  And of course, he was correct.  The Supreme Court has a limited capacity to review cases, and it is easy for a lawless judge to overwhelm its ability to catch and reverse all his escapades into CLT land. 

Whenever one of my clients has the misfortune of drawing a radical leftist judge (unsurprisingly, CLT finds its expression exclusively on the left), I must go through a by now all-too-familiar litany.  I give the client the bad news and explain there is a near 100% certainty they will lose at the trial court level, and therefore they should be prepared to either see the case through to an appeal or drop it immediately.  (I suppose that what the legal rule “the party whom the judge favors always wins” lacks in subtlety, it makes up for in near certain predictability.)  Some clients bail out; others soldier on.  I have never been wrong in my prediction.  I lost all of those cases at the trial court level, but I often won on appeal. 

CLT is not, strictly speaking, a theory of law at all.  It is a repudiation of the very concept of “law” as most people understand it.  If “law” is defined in a commonsense way as a set of pre-existing rules that are applied dispassionately and in a rigorously logical way to the facts of cases to arrive at politically neutral results, the fundamental animating principle of CLT is that law in that sense does not – indeed cannot – exist.  And while Crit judges understand they must “play the game,” they never lose sight of the central gnostic insight of CLT – the law is just that, a game with arbitrary rules based on nothing but power relationships.

CLT was once considered outlandish by most legal scholars, but  it is becoming increasingly mainstream.  That should worry anyone who values the rule of law.  Under CLT, the law does not exist.  It follows that the “rule of law” is a convenient fiction oppressors use to victimize the weak.  The most perfect expression of a legal system based on metaphysical materialism was found in the Soviet Union.  Sure, there were judges and lawyers and trials and appeals and all of the other procedural trappings of a legal system.  But everyone understood the game was rigged.  The lower-case party who was favored by the upper-case Party always won. 

This is what the Crits want for us.  Indeed, like the Soviet Union, they are candid about the fact that their theory is based on Marxist principles.  One needn’t be conservative or religious to understand the danger here.  CLT fails at the most basic application of Kant’s categorical imperative (“act only in accordance with that maxim through which you can at the same time will that it become a universal law”).  How would CLT play out if it were adopted as a universal law?  This is not hard to predict.  If the rule in all cases were “the party whom the judge favors always wins,” the people would very quickly come to understand that the law is a scam and respect for the law would plummet to zero.  After all, what sense does it make to play by the rules of a game you know is fixed? 

In the West we take respect for the rule of law for granted.  We shouldn’t, because the blessing of living in a society governed by law is the exception in history, not the rule.  Many cultures think of the law as an impediment to be gotten around, not as binding rules of conduct.  I once litigated a contract case with a foreign party who acted this way.  I will never forget the maxim that governed contracts in that person’s culture:  “A contract is in no sense binding; it is merely a snapshot of the negotiations at a particular point in time.”  An approach to law like that might be advantageous to a particular party in a particular case, but it is disastrous for a society as a whole.  When no one can enter a contract with any firm expectation that it will be performed, transaction costs increase exponentially with a predictable drag on economic output and thus overall prosperity.  It is no coincidence that the wealthiest nations tend to be those with the greatest commitment to the rule of law. 

Yet Crits and their fellow travelers expend enormous time and effort chopping away at the very concept of the rule of law.  And the superstructure is becoming increasingly wobbly, as the increasingly fractious fights over the confirmation of judges attests.  The left wants Crit judges or at least judges who act like Crits.  President Obama said he wanted to appoint judges who displayed empathy.  This is exactly what judges should not do.  If the law dictates that a party for whom the judge has great empathy must lose, then far from expressing that empathy, the judge must suppress it and rule for the other side.  Justice Sotomayor famously observed that she hoped “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  Blithering nonsense on a stick.  A judge’s ethnic background, gender, and life experience have absolutely zero relevance to the application of politically neutral legal principles to the facts of a case in a logically rigorous manner.  Yet the left went gaga over her statement. 

As a nation we are becoming increasingly divided over fundamental things.  One of the lines of demarcation is whether we will be ruled by law or ruled by, in Justice Scalia’s famous phrase, our “robed masters.”  That a significant plurality of our fellow citizens affirmatively desires to be ruled by a committee of unelected, unaccountable, life-tenured lawyers just so long as the committee “gets it right,” is both heartbreakingly sad and exceedingly shortsighted.  Sad, because we are on the verge of squandering the rule of law birthright bequeathed to us by the founders for a mess of progressive pottage.  Shortsighted because if it ever becomes widely understood that judges are merely imposing their policy preferences on us under the guise of interpreting the Constitution, that will be the end of our Republic as we have known it.

14 Replies to “Crits Are Terrible Judges

  1. 1
    polistra says:

    On the verge of squandering “rule of law”? Hah. “Rule of law” never existed. Caste exists. Nothing else. Correct people get away with killing millions. Incorrect people are punished for existing.

  2. 2
    Barry Arrington says:

    Polistra, concerning US law, I painted with broad stokes. Generally speaking, the US has been under the rule of law for most of its history. There have been two major (and several minor) exceptions. The first was Dred Scott, the first use of the ersatz doctrine of “substantive due process,” which the court employed in a vain attempt to perpetuate slavery. The second (Roe v. Wade) also used substantive due process to impose a practically unlimited abortion license on the country. Yes, millions died. These cases illustrate my point. They do not defeat it. When the Court imposes its policy preferences on the rest of us under the guise of interpreting the Constitution, bad things happen.

  3. 3
    Silver Asiatic says:

    Obergefell v. Hodges is not a minor exception.

  4. 4
    Barry Arrington says:

    SA, yes, but in the constellation of Supreme Court blunders, Scott and Roe shine brightest by far.

  5. 5

    The solution is to teach the difference between fact and opinion. The marxists are materialists, who are fact obsessed, and are clueless about subjectivity.

  6. 6
    News says:

    Barry, the chief reason Crits are terrible judges is that they have no sense of justice. The first rule of justice is not to prejudge a given issue. But they admit that they do.

  7. 7
    Silver Asiatic says:

    BA wrote

    In a universe devoid of ultimate meaning and objective morality, there cannot be such a thing as an objective legal principle. There is only power and those who have it and those who don’t, and the law is nothing but a power game used by oppressors to keep their victims down

    Well-stated. It shows the powerful effect a bad theory of origins has at the very root of our culture. People think that a debate over materialism is esoteric and useless, but as above – it has significant, real-world consequences. Courts are used to impose various ideas, meant for social engineering and manipulation of the people.
    We could say this is a result of democracy, but people didn’t vote for these social goals. Western societies also need to be more clear about what their principles are.

  8. 8
    chuckdarwin says:

    All lawyers know that for every “radical leftist” judge, one can always find an equally biased judge on the right. For every Roe v. Wade, there’s a Citizen’s United. For every Obergefell, there is a Heller. For every Duncan Kennedy there is a John Yoo. Every experienced litigator knows that judges are political animals and the higher up the food chain you go, the more political they are. Unfortunately, as we have seen, it is going to get a lot worse before it gets better….

  9. 9
    Silver Asiatic says:

    This strikes me as being relevant – unjust and insane ruling, this time from an Ivy League school:

    Rutgers bars unvaccinated students from attending virtual classes
    https://hotair.com/jazz-shaw/2021/09/07/rutgers-bars-unvaccinated-students-from-attending-virtual-classes-n414165
    Right upfront, I should specify that this story did not come from the Babylon Bee, though in previous times it probably would have been a popular entry for a satire site. This, however, is no laughing matter. The New York Post reports that a 22-year-old senior at Rutgers University, Logan Hollar, was locked out of his Rutgers email account and prevented from registering for classes because he failed to provide proof of vaccination against COVID. This happened despite the fact that all of Logan’s classes are conducted online and he does not physically show up at the campus, which is roughly seventy miles from his home.

  10. 10
    Barry Arrington says:

    chuckdarwin at 8 recycles a well-worn leftist trope of asserting a false equivalency. I have seen this all my life. In the 80s Chuck was probably advancing the US is just as evil as the USSR canard. Yes, conservative judges issue rulings that strike down laws too. The difference is that both of the decisions cited by Chuck are actually moored in the text, history and structure of the Constitution, while the decisions I cited are nothing but the assertion of raw judicial power with no grounding in the law. To say they are equivalent is like saying that a person who pushes an old lady down a subway grate is morally equivalent to helping an old lady by pushing her wheelchair across the street. After all, in both instances old ladies are getting pushed around.

  11. 11
    chuckdarwin says:

    “In the 80s Chuck was probably advancing the US is just as evil as the USSR canard.” Seriously?

  12. 12
    Barry Arrington says:

    Yes, seriously Chuck. People who engage in the false equivalence fallacy tend to do so in multiple contexts. It is a nasty habit.

  13. 13
    bornagain77 says:

    At 11 ChuckDarwin responds with “Seriously?” to the speculation that “In the 80s Chuck was probably advancing the US is just as evil as the USSR canard.”

    From that reply I take it that ChuckDarwin is indignant with the suggestion that he could have possibly suggested that US is just as evil as the USSR in the 1980s.

    Which is just as well since, much like North Korea today, the old Soviet Union was, in fact, a hell hole.

    But apparently ChuckDarwin is unaware of the fact that his beloved worldview of Darwinian evolution provided the basis of the Communism of the USSR, and that Christianity provided the basis of the representative government of the US, and therefore Chuck, (as a Darwinian atheist who is unwilling to ever honestly admit that his Darwinian worldview is false), should have, however untenable it is, somehow tried to maintain that, in the 1980s, “the US is just as evil as the USSR”.
    Moreover, Chuck should have also, somehow, tried to maintain USSR was better than the US was in the 1980s.

    Frankly, it would probably be easier to defend the proposition that the Moon is made of green cheese than trying to defend the absurd proposition of the Soviet Union was ‘heaven on earth’ compared to the US in the 1980s, but, since ChuckDarwin refuses to concede that Darwinian evolution is false, and since Darwinism did indeed provide the basis for the Communism of the USSR, then that is basically the only option that ChuckDarwin has for himself.

    In short, ChuckDarwin is forced to lie to himself if he wants to maintain that his atheistic Darwinian worldview is somehow better than Christianity is.

    A few notes

    Darwin on Marx – by Richard William Nelson | Apr 18, 2010
    Excerpt: Marx and Engels immediately recognized the significance of Darwin’s theory. Within weeks of the publication of The Origin of Species in November 1859, Engels wrote to Marx –
    “Darwin, by the way, whom I’m reading just now, is absolutely splendid. There was one aspect of teleology that had yet to be demolished, and that has now been done…. One does, of course, have to put up with the crude English method.”
    Marx wrote back to Engels on December 19, 1860 –
    “This is the book which contains the basis in natural history for our view.”
    The Origin of Species became the natural cause basis for Marx’s emerging class struggle movement. In a letter to comrade Ferdinand Lassalle, on January 16, 1861, Marx wrote –
    “Darwin’s book is very important and serves me as a basis in natural science for the class struggle in history.”
    Marx inscribed “sincere admirer” in Darwin’s copy of Marx’s first volume of Das Kapital in 1867. The importance of the theory of evolution for Communism was critical. In Das Kapital, Marx wrote –
    “Darwin has interested us in the history of Nature’s Technology, i.e., in the formation of the organs of plants and animals, which organs serve as instruments of production for sustaining life. Does not the history of the productive organs of man, of organs that are the material basis of all social organisation, deserve equal attention?”
    To acknowledge Darwin’s influence, Marx asked to dedicate Das Kapital to Darwin.
    https://www.darwinthenandnow.com/2010/04/darwin-on-marx/

    Atheism’s Body Count *
    It is obvious that Atheism cannot be true; for if it were, it would produce a more humane world, since it values only this life and is not swayed by the foolish beliefs of primitive superstitions and religions. However, the opposite proves to be true. Rather than providing the utopia of idealism, it has produced a body count second to none. With recent documents uncovered for the Maoist and Stalinist regimes, it now seems the high end of estimates of 250 million dead (between 1900-1987) are closer to the mark. The Stalinist Purges produced 61 million dead and Mao’s Cultural Revolution produced 70 million casualties. These murders are all upon their own people! This number does not include the countless dead in their wars of outward aggression waged in the name of the purity of atheism’s world view. China invades its peaceful, but religious neighbor, Tibet; supports N. Korea in its war against its southern neighbor and in its merciless oppression of its own people; and Pol Pot and the Khmer Rouge kill up to 6 million with Chinese support. All of these actions done “in the name of the people” to create a better world.
    – Atheism’s Tendency Towards Totalitarianism Rather Than Freedom
    What is so strange and odd that in spite of their outward rejection of religion and all its superstitions, they feel compelled to set up cults of personality and worship of the State and its leaders that is so totalitarian that the leaders are not satisfied with mere outward obedience; rather they insist on total mind control and control of thoughts, ideas and beliefs. They institute Gulags and “re-education” centers to indoctrinate anyone who even would dare question any action or declaration of the “Dear Leader.” Even the Spanish Inquisition cannot compare to the ruthlessness and methodical efficiency of these programs conducted on so massive a scale. While proclaiming freedom to the masses, they institute the most methodical efforts to completely eliminate freedom from the people, and they do so all “on behalf” of the proletariat. A completely ordered and totally unfree totalitarian State is routinely set up in place of religion, because it is obviously so profoundly better society. It is also strange that Stalin was a seminarian who rejected Christianity and went on to set up himself as an object of worship. It seems that impulse to religious devotion is present in all, whether that be in traditional forms or secular inventions.
    https://www.scholarscorner.com/atheisms-body-count-ideology-and-human-suffering/

  14. 14
    jerry says:

    This has nothing to do with crit legal theory but came from an exchange between Jordan Peterson and Dennis Prager about race.

    What’s happening is Anti-Truth not lies or deception

    An Anti Truth is a lie that’s so egregious that it is the opposite of what’s true

    https://twitter.com/jordanbpeterson/status/1434925598498074624

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