Certainty and Doubt
[T]here aint any answer, there aint going to be any answer, there
never has been an answer, that’s the answer.
In chapter 1, I suggested that something called “justice” was at stake in our relationships to the rule of law. If you have been (or are being) well trained in law school, you are probably wondering where I come off using that word. In response, I would ask you how we acquire the habit of running from justice?
A student hasn’t had to read too many opinions in law school before she realizes that the strategy for each judge is to show that his position better reflects what the law “really is.” The persuasiveness of opinions depends upon the standard of fidelity to law, measured by indicia of technicality and deductive, impersonal reasoning. That’s what makes them “opinions” rather than outbursts. The usual message of any opin- ion is “the law made me do it.” Dissenting judges in appellate cases make parallel arguments. Dissenters score points by arguing that major- ity opinions are either an incorrect application of existing law, or are not really loyal to some aspect of existing law, or are nothing more than products of that most feared of all evils, judicial subjectivity.
In the United States Supreme Court, this game is played over and over again. The most famous example is Justice Holmes’s dissent in Lochner v. New York. In a blow for freedom of contract (or for ex- ploitation of labor, depending upon your point of view), a majority of the Court had invalidated a state statute that limited working hours for bakers. Dissenting, Justice Holmes immortally drew the sword of judi- cial restraint:
This case is decided upon an economic theory which a large part of the
country does not entertain. If it were a question whether I agreed with