This post expands upon the previous one. Justice cannot be found in a text. Neither originalism nor textualism can result in justice, except by chance. Full stop. Justice cannot be found in the past. It lives only in the present moment. Justice exists only when the right systemic conditions allow it to come forth. Justice belongs to the same class of qualities as does beauty or fairness. Justice always depends on the contextual whole of the place and time it is to be found. Further, what is right cannot be found wholly in a text, Rightness, like justice, is a measure of moral fitness. It is an understanding of the particular conditions that enable life to go on in a particular setting. Texts are important in providing guidance on how qualities like justice or rightness can be created, but are never enough.
Contrary to the age-old aphorism, justice in not blind, Justice’s eyes are wide-open, taking in the context of whatever situation is being examined, in other words, being empathetic, striving to understand the case at hand in the context of the world in which it is situated. Justice is served when an understanding of the present and knowledge of the past become married. Texts and their interpretations stand in service to the moment. Not so in the case in Dobbs. The concurring Justices have forced the past upon the present with little or no regard to the state of today’s world. The crux of their argument is that there is no textual or historical basis to establish the right of abortion, so present-day claims of such a right have no standing.
It is significant that the process by which juridical decisions are made is called jurisprudence, a word stemming from two Latin words, juris or law and prudentia or foreseeing, foresight, sagacity, practical judgment. Prudentia, in turn, derives from the Greek word, phronesis, again meaning practical wisdom. Aristotle took pains to distinguish phronesis from two other basic forms of knowledge, epistēmē (theory), and technē (technical knowledge) as central to governing. From Aristotle’s day forward, until this moment in time, wisdom has been an essential element in jurisprudence. The Biblical story of Solomon and the two mothers claiming ownership of an infant is a classic example of wisdom, the fitting of one’s existing body of knowledge to the present moment.
The role of the US Supreme Court in enabling justice to flourish under the US Constitution demands wisdom, not merely the performance of a formal, prescribed exercise, that will, if performed properly, presumably reveal truth, in this case, meanings inherent in the text of the document. The originalist’s process proscribes empathy, an understanding of the potential impact of their utterances on real human beings. It is merely to be a technical exercise, based on a theory, the same two forms of knowledge Aristotle said were insufficient in governing the affairs of society. Wisdom is the characteristic way of working of the great Talmudic scholars, and of similar sages in other religious and cultural contexts.
In the absence of wisdom, opinions based solely on textual interpretations represent little more than the exercise of raw power because they lack any reflection of their consequences. Words resulting from formalism, like textualism or originalism, are completely constrained to the writers’ existing beliefs because that is the way the brain works. Any claimed objectivity is nonsense. These opinions are thoroughly idiosyncratic. Meaning in the present always requires lifting knowledge from the past and creatively shaping it to fit the present. Wisdom is far from a formal exercise, there are no rules. Wisdom always involves a cognitive connection to the here and now. Empathy comes from on such connections. The different between wisdom and formalism is stark, just as a paint-by-numbers version of a Vermeer can never capture the beauty of the original. Justice Roberts has shown glimmers of wisdom from time to time, but the other five “Justices” signing the Dobbs opinion are, by their own actions, behaving as ideologically driven, political operatives.
The need for wisdom from the Bench has never been greater. The world is always changing and has become more complex. Our founding Fathers (white men, all) were largely deists, who believed that God existed, had created the world, but left it to us to figure out how to live within it. They trusted that future leaders of our great country would have the same kind of wisdom that enabled them to create our wonderful country, not by following some fixed set of rules, but by fitting what they knew to a new and challenging situation. This present court has shown itself to be incapable of rendering the necessary jurisprudence appropriate to this moment in history. It needs changing, but not primarily for partisan reasons. It must be restored to be the last bastion of wisdom in our fractured, angry country.