How do you make sense of someone different than yourself? How do you bridge the gap between your worldview and theirs? It’s worth doing, but it’s hard. (Witness the ongoing labors of the lies.com commenteriat.)
Law professor Dan Kahan has some really interesting thoughts on this. In a recent comment on the Supreme Court’s ruling on Obamacare (What I have to say about Chief Justice Roberts, and how I feel, the day after the day after the health care decision), Kahan wrote about how pleased he was that Roberts took the position he did. It wasn’t just that Kahan liked the outcome (though he did). It’s that by the way he arrived at it, Roberts helped communicate the importance of judicial neutrality.
I admire the Chief Justice for displaying so vividly and excellently something that reflects the best conception of the profession I share with him. I am grateful to him for supplying us with a resource that I and others can use to try to help others acquire the professional craft sense that deriving and applying neutral of constitutional law demands.
And I’m happy that he did something that in itself furnishes the assurance that ordinary citizens deserve that the law is being applied in a manner that is meaningfully neutral with respect to their diverse ends and interests. They need tangible examples of that, too, because is inevitable that judges who are expertly and honestly enforcing neutrality will nevertheless reach decisions that sometimes profoundly disappoint them.
But Kahan goes beyond that, and it’s the next part that was most fascinating to me. Kahan turns his attention on himself, and his reaction to Roberts’ ruling.
As I said, I admire Chief Justice Roberts and am grateful to him for reasons independent of my views of the merits of Affordable Care Act case. I honestly mean this.
But I am aware of the awkwardness of being moved to remark a virtuous performance of neutral judging on an occasion in which it was decisive to securing a result I support. Or at least, I am awkwardly and painfully aware that I can’t readily think of a comparable instance of virtuous judging that contributed to an outcome that in fact profoundly disappointed me. Surely, the reason can’t be that there has never been an occasion for me to take note of such a performance—and to remark and learn from it.
I have a sense that there are other members of my profession and of my persuasion and outlook on generally who share this complex of reactions toward Chief Justice Roberts’s judging.
I propose that we recognize the sense of anxiety about ourselves that accompanies our collegial identification with him as an integral element of the professional dispositions that his decision exemplifies.
It will, I think, improve our perception to harbor such anxiety. And will make us less likely to overlook– or even unjustly denounce–the next Judge whose neutrality results in a decision with which we disagree.
Lots of other great stuff at Kahan’s blog recently. I also really enjoyed Nullius in verba? Surely you are joking, Mr. Hooke! (or Why cultural cognition is not a bias, part 1) and The cultural certification of truth in the Liberal Republic of Science (or part 2 of why cultural cognition is not a bias).
Kahan is onto something, and I appreciate his enthusiasm in pursuing and sharing that something. He betrays a gentle human spirit, a willingness to consider the legitimacy of the other person’s point of view, that I find admirable.
Here’s another gentle human spirit, the late Mitch Hedberg, dealing with a nightclub heckler in a way that affirms both of their humanity:
There are differences that divide us. But there’s common ground, too, if we’re willing to look for it.