ON NON-EXISTENT CHOICES

Professor Bainbridge responds to my comments below, thus:

So much for anything remotely resembling neutral principles. In lieu thereof, Marston offers up nothing more than naked personal preference. Instead of legitimate processes, Marston would prefer to impose on us a varying cast of tyrants who will impose his preferred outcomes. So much also for anything remotely resembling democracy - or liberty.

Not so fast. The question is: if you had to take moral judgments made by legislatures, or moral judgments made by courts, which would you take? First, it's a silly choice. Moral judgments are inevitable in both institutions. Second, if judgment is necessary, one should judge based on the history of outcomes, not simply on a theory of institutions. That history reveals a mix of good and bad outcomes from both institutions; we can expect the mix to continue. But, third, since Professor Bainbridge offers responsiveness as a reason to choose legislatures, let's assume limited resources, and ask: will my $200 influence outcomes more if I donate it wisely to a congressional race in a swing state, or if I donate it to, say, the Southern Poverty Law Center? Seems like a toss-up to me, all things considered. And what if I don't have $200?

Steve Taylor hits the nail on the head in this respect: part of the reason why folks criticize moral judgments made by courts is that they think that courts should just get out of the (newfangled) business of such judgments. Everything depends on how one defines the key terms here, I suppose, but try to find an approach to recent Establishment Clause school aid cases that avoids contestable moral judgments altogether. Your effective choices are:

• Let states and localities give taxpayer dollars to religious organizations in an "evenhanded" way (I mean, as Justice Thomas might say, what are you, an anti-religious bigot?)


• or, prevent states and localities from giving taxpayer dollars to religious organizations (I mean, what are you, an oppressor of non-religious taxpayers, as Justice Douglas might have said, or an unwitting Balkanizer, as Justice Stevens might say, see here)


• or, find some judicially monitored middle-ground (not wanting to be either a bigot or an oppressor, as, perhaps, Justice O'Connor might say, or at least think, see here).

Good luck extricating the courts from contestable moral judgments there. Note that democratism, letting legislatures do what they want based on their own moral lights, will leave you open to the charge that you are being guided by moral beliefs as well, and you'd probably have to agree, at least in private. Hence, it seems to me, the invocation of the spirited language of bigotry in Thomas's Mitchell opinion, see here (end of part II). And as Stuart Buck notes with respect to bureaucratic decisionmaking: courts also act this way partly because we ask them to.