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).

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