Reading Opinions: A Different Conservative View


Professor Hadley Arkes brought his view of the correct way to view judicial opinions to the Federalist Society in Hauser Hall on Thursday February 28th. Arkes, the Edward N. Ney Professor in American Institutions at Amherst College, primarily spoke about the need to reread judicial opinions of the past to understand the approach the judges took. He emphasized that to truly understand the law, one must go beyond the “caricatures” that we know about the cases and understand the reasoning, which has too often been “filtered to us.” Once he uncovered this unfiltered version of the reasoning, Arkes proposed that one reason we have felt let down by the court in some landmark cases is that the courts forgot about the notion of principles and too often tried to simply build off of the available precedent.The first part of Arkes’ discussion emphasized the idea that judicial opinions need to be read as “a conversation across the generations.” He argued that reading these judges again allows one to see that they were in fact in a continuing conversation about the issues at hand. They carefully wrote about contentious issues such as race, or gender, and attempted to “draw lines from one case to another” while limiting the scope of their decisions.

As illustrations of this notion of how judges wrote in past generations Arkes quoted passages from cases such as Plessy v. Ferguson, which many today simply remember as being the case that allowed “separate but equal.” In his discussion Prof. Arkes tried to remind the audience, through his quotations, that the court was not evil minded, but rather was approaching the issue from a step-by-step perspective drawing lines from previous cases and looking to the work of the legislature. Arkes even criticized the dissent in Plessy, written by the first Justice Harlan. He noted that Harlan’s opinion was rightly animated, but that it never presented the argument against the separation of the races at its root by attacking it as a matter of principle.

This was Arkes’ main point; the problem with courts in their approach to many issues such as race has not been that courts were ill-informed, or evil, but that they simply took an approach that left out the influence of first principles and a notion of natural law. He argued that “we don’t normally do a raising of hands” to understand what something means; we go back to the principles behind the text. He noted that too often the court approached an issue of desegregation by stating that the matter was one of first impression.

Arkes claimed that racism in schools, in pools, or in restaurants were not all individual issues of first impression to be argued in terms of social science or precedents. Instead, he argued that the courts should have approached the matters in kind as an issue of principle based upon fairness and equality.

In this way Arkes drew himself apart from many conservative judges, such as Supreme Court Justice Antonin Scalia, by passionately advocating for judges to look to the background principles of our society and use these in their judicial decision-making. He argued that “we used to do this,” and that while “it was done by men with no claim to towering genius,” it worked.

By starting with an analysis of the supposed failings of past court decisions and using this discussion as a vehicle to introduce his passionate arguments for an inclusion of natural law and first principles into judicial decision making, Arkes challenged many aspects of conservative legal thought. He urged those in attendance to not forget that men such as Alexander Hamilton also asked that texts be looked at with a view toward primary truths and first principles. Admitting that his views exposed a divide in the conservative “family,” Prof. Arkes still challenged those in attendance to rethink their views of how judges approach issues of natural law.

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