Tuesday, June 21, 2016

Sotomayor's dissent probably doesn't matter

Yesterday, liberal media publications spent much of the evening celebrating Supreme Court Justice Sonia Sotomayor's "epic", "searing", "ringing", "atomic bomb of a dissent" in the case of Utah v. Stieff. The triumphalism struck me as a little misplaced, since writing a dissent tends to mean that you have actually lost; and in these hyperbolic headlines, I can't help but hear the echo of liberals cheering on John Oliver when he lands empty zingers on a Republican majority that, by the way, is still the majority. Your #UniteBlue uncle may get a kick out of seeing Sotomayor name-check liberal media icons like Ta-Nehisi Coates and Michelle Alexander, but that will be little consolation to the Americans - disproportionately poor and people of color - who are going to be targeted from now on by cops using illegal stops as fishing expeditions.

Still, when I made a grim joke about this last evening, a lot of people responded: won't Sotomayor's dissent at least lay some legal groundwork for future progress on this issue? The orthodox jurisprudential answer here is "possibly", but the heterodox take I'm going to run with here is "probably not".

Ordinary jurisprudential thought sees court opinions as a body of reasoning that builds on itself over time. Even opinions that don't happen to prevail in a particular case may create a basis for later arguments that do prevail, if their reasoning is sound or their rhetoric persuasive. For this reason, liberals are tempted to see in dissents the seeds of future victories, and fetishize eloquent flourishes and clever turns of logic as acts of genius that will be vindicated by history.

I call this a decisively liberal perspective because it's ultimately grounded in a faith in rationalism and proceduralism that leftists don't share. Particularly within the field of critical legal studies, there persists a school of thought that sees the logic of precedent as largely irrelevant to the production of legal doctrine. From this perspective, "precedent" is just what we call it when a judge opportunistically insists that he is basing his opinion on a previous case - whether he actually is or not. There are no rules of argumentation or representation that can force him to do this "accurately" or "fairly", or rules that can prevent him from being incompetent or cynical about this; all it takes is a basic degree of lawyerly sophistry and ideological ambition.

I'm often suprised that this position is still as controversial and heterodox as it is. Particularly after the Scalia era, when we saw just how mendacious a judge can be, just how tortured his reasoning and ridiculous his semantics, and all in the guise of a supposedly disinterested committment to "textualism" that should have enforced chains of precedent with utterly deterministic rigor. It seems obvious to me that if twenty years from now a liberal court wants to overturn Utah v. Stieff, they'll do it with or without Sotomayor's dissent, simply because they can. Generally, that opportunistic model of jurisprudence does more to predict how courts will actually rule than elaborate theories that turn on the importance of precedents and dissents.