Judicial Criticism

Today I shall talk about the criticism of judicial opinions, especially of constitutional opinions. This may at first seem to have rather little to do with our larger topic, The Constitution and Human Values, but I hope that by the end I will be seen to be talking about that subject too. In fact I hope to show that in what I call our criticism, our values are defined and made actual in most important ways. I will begin with a double quotation. I recently heard my friend and colleague Alton Becker, who writes about language and culture, begin a lecture by saying that one universal aspect of cultural life is the keeping alive of old texts, a reiteration of what was said before in a new context where it can have a life that is at once old and new. (The Javanese even have a name for it.) The text that Becker chose to keep alive in his lecture was a remark made by John Dewey when, toward the end of his long life, he was asked what he had learned from it all. He said, I have learned that democracy begins in conversation. In this lecture I will try, by locating it in a new context, to give that same sentence a continued life. The process of giving life to old texts by placing them in new ways and in new relations is of course familiar to us as lawyers. It is how the law lives and grows and transforms itself, for the law is nothing if it is not a way of paying attention and respect to what is outside of ourselves: to texts made by others in the past, which we regard as authoritative, and to texts made in the present by our fellow citizens, to which we listen. We try to place texts of both sorts in patterns, of what has been and what will be, and these patterns are themselves compositions. The law is at its heart an interpretive and compositional, and in this sense a radically literary, activity. Such at least is my view: for others the law is policy, nothing but policy, and the only question what results we prefer; or power, nothing but power, and the only question who has it; or perhaps it is morality, and the only question what is right or wrong. So in these remarks I will be making a claim for the character of law itself, as a way of reading, composing, and criticizing authoritative texts, and in so doing, as a way of constituting, through conversation, a community and a culture of a certain kind. In doing this I will try to give two other texts renewed life too, namely the opinions of Chief Justice Taft and Justice Brandeis in the famous case of Olmstead v. United States