‘Intellectual honesty’ covers a lot of territory. It obviously forbids plagiarism, in all of its varieties. But it covers other ground as well. For example, an experimental scientist who announces a result while knowingly withholding data that contradicts the result has acted intellectually dishonestly. A philosopher who argues for a conclusion while knowingly ignoring good arguments against that conclusion has acted intellectually dishonestly. There is a political version of this vice, in which politicians knowingly ignore reasonable arguments against their position. (One might dispute whether this sort of activity is vicious in politics, as it is in academia. I believe that it is. But in any case, there is little doubt that it is rampant.) But I’m not writing primarily about politics here. Instead, I’d like to consider what ‘intellectual honesty’ might mean in the context of the courts. I am prompted to consider the issue by the recent nomination of Judge Alito for the Supreme Court.
To see why that nomination made me think about this issue, consider the following analogy. Suppose that there is a team of nine scientists working on some particular scientific question — suppose, for example, that they are trying to measure the mass of some fundamental particle. They have access to precisely the same sets of data (from a variety of experiments). Their job, as scientists, is to interpret that data, each time. Now suppose that, frequently, when a new set of data comes in (for example, a new experiment is run that is relevant to their shared question), one particular scientist, ’scientist X‘, interprets the data differently from the others, who all more or less agree.
There are several types of explanation for this sort of disagreement (between scientist X and the others), but there is little doubt that an explanation is needed. One possibility (a) is that scientist X is incompetent. Another (b) is that scientist X is a genius, and the others are unable to appreciate the brilliance of the rogue interpretations, or perhaps are incompetent themselves. Yet another (c) is that scientist X is willfully interpreting the data differently. Perhaps, for example, scientist X has a brief for some particular physical theory, one that requires the mass of this particle to be different from what the others believe it to be. These three hypotheses (a,b, and c) are probably the most reasonable candidates for the correct explanation of scientist X’s behavior.
Assuming that all of the scientists on the team have good training, solid experience, a good track record on relevantly similar questions, and appear to be reasoning intelligently and honestly about the data, explanation (b) seems quite unlikely. Of course, it always remains a possibility — maybe we too are unable to appreciate scientist X’s genius! — but it is a judgment that, under the described conditions, ought, in general, to be reserved for the cases where the other explanations can be ruled out, or where scientist X’s judgment has been independently vindicated. (There are events of that sort in the history of science, but they are very rare. The picture of the lone genius bucking against the establishment is romantic, but it is almost never accurate.)
We are left, then, with (a) or (c). Of course, neither is very flattering to scientist X, and both are good reasons to reject scientist X’s judgments. If scientist X is merely incompetent, then we should advise a change of career. If the correct explanation of the repeated dissent is intellectual dishonesty, then scientist X should be censured for engaging in activity that is both morally wrong and highly damaging to scientific progress. (Those not in a position to make a judgment themselves might see the dispute between scientist X and the others as indicative of genuine scientific uncertainty, when it is instead a case of one scientist’s intellectual dishonesty. Alas, this sort of thing happens all the time.)
Notice that this story I am telling would have a very different conclusion if we were talking about, say, food critics. “À chacun son goût”, as the French say. There is no accounting for taste. If one food critic adores a new restaurant and eight others despise it, we might draw the conclusion that we are, ourselves, more likely to despise it than to adore it, but we would not (at least, I would not) conclude that the rogue critic is wrong (as opposed to idiosyncratic). The point is that in taste there is no unique correct answer. There is a unique correct answer about the mass of a particle. (Some philosophers of science would disagree with me about that; for them, I would need to draw this distinction in a more subtle way.)
Let’s turn, finally, to the courts. As President Bush and so many others love to emphasize, the job of a judge is to interpret and, given the interpretation, apply the law. (We should add that the judge’s job is also to interpret judicial precedent — indeed, much of what appellate courts do is to interpret prior rulings of their own, or of other courts, especially the Supreme Court.) In other words, the job of the judge is more akin to that of the scientist than that of the food critic. There is, in principle, a correct interpretation of laws and judicial precedents. Of course, as it goes in science, so also in the law: there are hard cases — cases where the correct interpretation is difficult to fathom, perhaps because of apparent (or worse, real) inconsistencies in the ‘evidence’ (the laws and judicial precedent), perhaps because of a lack of relevant evidence, or perhaps because of the inherent difficulty of understanding the evidence.
However, even in light of this difficulty (which is no less present in science), it remains reasonable to try to find an explanation for why a single judge would frequently disagree with the others, often as a minority of 1. Judge Alito has just such a record (as reported by many court-watchers, both left-wing and right-wing). He frequently disagrees with his fellow judges, when, in fact, they are all ‘interpreting’ the very same law and judicial precedent. Why? Is he incompetent? Is he a judicial genius toiling against legal dimwits? Or is he intellectually dishonest?
Many of his supporters, and some of his detractors, praise his legal skill in glowing terms: I can recall, in recent days, hearing the terms ‘brilliant’, ‘astute’, ‘knowledgeable’, ‘expert’, and ’skilled’. It seems safe to rule out incompetence. How might we make a determination about the other possibilities (genius or dishonesty)? I’m not in a position to judge, although I might try to take a stab at some relevant considerations in a later post.
However, I do wish to argue for this point: intellectual dishonesty is a possibility for judges. My main claim, here, is not about Judge Alito, but about the nature of the job for which he is nominated (and indeed the nature of the job he already holds). It is more like the job of the scientist than like the job of the food critic. It is possible to be wrong. It is possible to be misinformed, or to ignore the information that one does have. It is possible to misinterpret the law or judicial precedent, and it is possible to do so willfully, either by ignoring relevant aspects of the law or judicial precedent, or by ignoring good arguments against one’s own interpretation. Doing so is a form of intellectual dishonesty, and this sort of judicial intellectual dishonesty is severely damaging to the courts, and to our society.
Michael,
Aren’t there other explanations for disagreement where the law is concerned that aren’t really operative when science is running “normally,” i.e., according to a more or less established paradigm? Namely, in the interpretation of the law, there is much less of a paradiigmatic framework from which to carry out the interpretatation. (Disagreement in the law is at least *somewhat* more like disagreement in philosophy than it is like disagreement in science.) Disagreements are so consderable, that there is disagreement about whether and to what extent the job of the judge *is* to interpret, as oppsed to, say, subtly (or not so subtly) making new law; whether the interpretation is to be in terms of the “original meaning” or more recently incorprated values (not all of which, clearly, are shared by judges in common, thus adding a new layer of difficulty.) Someone who disagrees that “the right to privacy” as it is articulated in Roe is protected by the Constitution does not necessarily disagree either because he is incompetent, a genius, or intellectually dishonest. I think.
CT
Chris,
I agree with some of what you say. First, let me insist on the main point (which you are not, I think, calling into question, at least not explicitly), which is that intellectual dishonesty is possible for judges (qua judges). In particular: in writing a decision, a judge may willfully disregard relevant evidence or arguments that would reasonably be taken to cast some doubt on the decision; such disregard is a form of intellectual dishonesty; and such dishonesty is damaging to our society.
The other main claim that I made in the original post was that frequent disagreement of one judge with the others gives us reason to suspect incompetence, genius, or intellectual dishonesty. You are calling this second claim into question. In what you say, there are I think really two points, and I’ll begin with yet another.
First (this is my point not yours), disagreement amongst judges may arise because the case at hand is genuinely very difficult. (As I said in my original post, the same can happen in science. There might be a difference of degree between the two cases, though I’m not sure that there is.) Hence, a possible explanation for one judge’s frequently disagreeing with others might have to do with the difficulty of the cases in question. I do not believe that there is any easy way to decide whether disagreement should be chalked up to the inherent difficulty of the case, but it is clearly one possible explanation of disagreement, and probably I should have emphasized this point more. Of course, the right thing to do — in both science and in the law — is to examine the reasons offered by both sides and go from there. In some cases, examination of those reasons will lead to one of the three conclusions that I offered (incompetence, genius, or intellectual dishonesty), and in other cases we will simply be left with the disagreement, without being able to say much more (unless one of the next two points comes into play).
Second (this is your point), a premise of my discussion might be false. That is, perhaps the job of judges is not merely to interpret the law. I believe that (except in extreme cases, ones that are essentially analogous to cases where civil disobedience is the correct course of action) interpretation ought to be the job of judges. But even if I am wrong, it is worth noticing that virtually everybody who is involved in the process of nominating and confirming judges (the administration, the nominees, the senators) says that the job of the judge is only to interpret (and apply). If they believe otherwise, they should say so. (I am aware that saying so is politically impossible. But it remains morally possible….) In addition, unless we are also to conclude that reason-giving may be abandoned by judges, certain forms of intellectual dishonesty are possible (and pernicious) even if the judge’s job is not merely to interpret, so long as reason-giving is still considered essential to the job.
Third (also your point), people might genuinely disagree about what ‘interpretation’ means. That is, they might understand interpretation in the context of different ‘paradigms’, and you helpfully add two examples of how our understandings of interpretation might differ. I accept the amendment. Disagreement might also sometimes be due to such differences. However, I would add that there might be times when this explanation of the disagreement is implausible. (I am not making any claim here about a particular case, or judge. I probably will in a later post.) In other words, I am not a complete relativist about ‘the meaning of the law’. The interpretation of a law is partly — indeed, I think, largely — fixed by the language of the law, and one’s own understanding of interpretation introduces only so much latitude. One should be especially suspicious (that something other than interpretation is going on) when one and the same law is interpreted, by the same judge, in apparently radically different ways, depending on the application. One should also be suspicious when apparently good reasons against an interpretation are ignored (rather than engaged).