Culhane Responds
May 27th, 2009 by Nick SaintLaw professor John Culhane responds to my earlier post thus:
Your vituperative post (”this man is a law professor”) overlooks the possibility that I’d read and digested the briefs, heard the three hours of oral argument, and understood the legal issues on both sides before the ruling was handed down. In fact, though, all of these things are true. My reaction was based on what I knew the court to have done, and I had a pretty good sense of the reasons it might have given for doing so. Mostly, I was right. (I’ve since done a sort of long legal analysis, but one geared for the “lay” audience.)
Admittedly, I could have been clearer about what I meant by “blinking”; it’s not surprising you were at a loss. What I meant, and should have conveyed more clearly, is that the court, with at least a couple of key justices soon up for retention, was intimidated by the populist rhetoric to the extent that its judgment was occluded; a judgment that I thought should have gone the other way, pretty much along the lines expressed in Justice Moreno’s dissent.
I confess freely that I was writing with a good deal of vituperativity. Public discourse on matters of jurisprudence have a way of filling me with mind-numbing despair, so perhaps I was lobbing criticisms a bit too erratically, rather than inflicting targeted scorn on the world, as per usual. But I would have hoped it was clear that Culhane’s understanding of the law wasn’t my target here. I was highlighting the post he actually wrote as an example of the way we think and talk about judicial review.
I suppose I did “overlook[] the possibility” that he had been through the briefs already, but not out of nastiness, but simply because it didn’t matter much to the point I was making, which is that the response of a law professor to this news was a condemnation of the court that made no reference to the legal merits of the case. I also pointed out, and was much nastier about, a post from an opponent of gay marriage, which also ignored the legal questions at hand.
The clarification over the “blinking” business is helpful. That was certainly the heart of my complaint, so I’m happy it was merely a misunderstanding on my part. But I do think that the order of operations here - a post reacting to the awful news, with a legal explanation for the lay audience to follow - reinforces my point that the nuts and bolts of legal reasoning are essentially epiphenomenal to the process through which people make up their minds about these issues. (Culhane’s charge that my post was ‘vituperative’ clearly establishes that it is Vocabulary Day, thus licensing my use of ‘epiphenomenal’. There’s precedent here.) There’s nothing particularly original or groundbreaking about that observation, but that doesn’t make it any less accurate.
So, John Culhane, I’m sorry I spilled my vituperation on you, it was to a large extent unwarranted. I still think the fact that you can blog about the tragedy of a decision to an audience that you assume does not yet have enough information to know what is wrong with that decision is a pretty good example of the cognitive dissonance our society maintains regarding judicial matters. But I also realize that actually being bothered by this puts me in a small, crazy minority. And, as should go without saying at this point, on the actual substance at issue here I am firmly on your side, not Maggie Gallagher’s.
