Man Without Qualities

Thursday, June 27, 2002

Tales From the Souter Woods

Glenn Reynolds has drawn attention to a very interesting paper by Thomas Davies detailing the descent of Justice Souter into what might be called "intellectual fraud" in one of his opinions. But it may be that not only some law professors are tiring of what they see as Justice Souter's tale-tellings.

The just-released Supreme Court decision permitting school vouchers is interesting in many ways - and one of them is its manifestation of impatience by the majority Justices, especially O'Connor in her concurring opinion, with what they seem to come close to calling Justice Souter's intellectual dishonesty. Some representative samples from the O'Connor concurrence are reproduced below. In each of them there is, at least to my eye, more than the customary effort to get the better of a dissenting Justice's argument. There is a recurring accusatory theme: Justice Souter ignores evidence. He unfairly uses precedent. He cites narrow data selectively to support broad conclusions. In short, the implication seems to be that SOUTER IS INTELLECTUALLY DISHONEST, and some of the Justices are more than a little fed up with it. In comparison, while Justices Stevens and Breyer each filed separate strong dissents, Justice O'Connor does not suggest that they lack intellectual honesty the way Justice Souter does. Justice Souter has sometimes been thought to be an influence on Justices O'Connor and Kennedy (as in the Court's abortion cases). So if Justice O'Connor's is becoming alienated from her colleague's tactics, that could have far reaching consequences.

Here are the excerpts from the O'Connor concurrence:

"JUSTICE SOUTER portrays this inquiry as a departure from Everson. ... A fair reading of the holding in that case suggests quite the opposite."

"There is little question in my mind that the Cleveland voucher program is neutral as between religious schools and nonreligious schools. ... JUSTICE SOUTER rejects the Court’s notion of neutrality, proposing that the neutrality of a program should be gauged not by the opportunities it presents but rather by its effects. ... JUSTICE SOUTER’s notion of neutrality is inconsistent with that in our case law."

"To support his hunch about the effect of the cap on tuition under the voucher program, JUSTICE SOUTER cites national data to suggest that, on average, Catholic schools have a cost advantage over other types of schools. ... Even if national statistics were relevant for evaluating the Cleveland program, JUSTICE SOUTER ignores evidence which suggests that, at a national level, nonreligious private schools may target a market for different, if not higher, quality of education."

"JUSTICE SOUTER’s theory that the Cleveland voucher program’s cap on the tuition encourages lowincome student to attend religious schools ignores that these students receive nearly double the amount of tuition assistance under the community schools program than under the voucher program and that none of the community
schools is religious."

"And of the four community schools JUSTICE SOUTER claims are unavailable to voucher students, he is correct only about one..."

"JUSTICE SOUTER’s evaluation of the Hope Academy schools assumes that the only relevant measure of school quality is academic performance. It is reasonable to suppose, however, that parents in the inner city also choose schools that provide discipline and a safe environment for their children."

"Ultimately, JUSTICE SOUTER relies on very narrow data to draw rather broad conclusions."

"What appears to motivate JUSTICE SOUTER’s analysis is a desire for a limiting principle to rule out certain nonreligious schools as alternatives to religious schools in the voucher program."

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