Tuesday, September 27, 2011

Misunderstanding Scalia

Chris Mooney is a science journalist who writes a lot about promoting a leftist-evolutionist-environmentalist agenda without alienating Christians. He is an atheist himself, but believes that strident
atheists are undermining the cause.

He writes:
Dan Kahan’s latest motivated reasoning paper (forthcoming in the Harvard Law Review), which applies this core insight about human psychology and biased reasoning to the U.S. Supreme Court’s last term. ...

First of all, let me say that the paper has about the best scholarly summary around of what motivated reasoning -— or, “identity protective cognition” -— actually is. Given that I’m basically asserting that this phenomenon is the number one reason people come to disagree about science and the facts, that is something you really may want to check out. ...

Justice Scalia wrote the dissent -— and basically, it was sheer postmodernism. Scalia argued that judges can’t really read objective evidence about such a politicized matter -– whether a prisoner release could be safe.
Here is what Scalia actually wrote:
[T]he idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have “found” that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments.
Dan M. Kahan's law review paper on motivated cognition says:
Frustration over the nonneutrality of Roe and the Court’s “privacy” jurisprudence more generally produced various species of “interpretivist” theories. Identifying the text and intentions of the Framers as the sole legitimate guides to constitutional interpretation, these theories crossbred and evolved into the “original intent” position now associated with Justice Scalia.
No, Scalia is directly opposed to original intent.
He once said, in a published speech:
You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words.
I don't know how anyone could misunderstand Scalia so badly. Scalia is completely correct that the court decision to order the release of prisoners to relieve overcrowding was based on policy judgments, not facts. The fact-finding was bogus.

Postmodernism can be described:
It involves the belief that many, if not all, apparent realities are only social constructs, as they are subject to change inherent to time and place. It emphasizes the role of language, power relations, and motivations; in particular it attacks the use of sharp classifications such as male versus female, straight versus gay, white versus black, and imperial versus colonial. Rather, it holds realities to be plural and relative, and dependent on who the interested parties are and what their interests consist of. It upholds the belief that there is no absolute truth and the way in which different people perceive the world is subjective.
That is not what Scalia was saying at all. He was distinguishing between the fact-finding function of the courts, and the policy-choosing function of the legislature.

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