LEGAL ANALYSIS, UNDERLYING MOTIVATION, AND POLITICAL CORRECTNESS:
Looking Beyond and Beneath Lawyers and Politicians' Asserted Justifications for Action

Does legal analysis consist only of analyzing arguments that are put on the table by the arguer himself? Or does it also include a willingness to look underneath the arguments actually expressed, for the motivations they obscure?

It is one thing, after all, to say to someone, "I respectfully disagree with what you say, and here is why." Such a comment implicitly presumes that one is engaged in a good-faith conversation with someone who, if confronted with superior arguments, would change her opinion. It presumes, that is, that the speaker trusts the listener as a colleague in a common conversation

It is quite another thing to say, "I think you are arguing in bad faith. You are putting forth makeweight arguments in order to achieve a pre-ordained purpose. Since you are results-oriented, I know you wouldn't change your mind even if confronted with superior arguments. Indeed, you are so basically untrustworthy - or, what is much the same thing, so driven by your political interests - that you literally cannot see the errors of your ways."

Such a retort destroys the idea that there is a common conversation between the speaker and the listener. It implies, instead, that all that is going on is a pseudo-conversation: If someone wins, it will be through raw power, not the force of their argumentation.

In legal culture, which relies heavily on the belief that argument is everything, the difference between these two ways of approaching argument - as what is sincerely believed to be the truth, or as a cover for the surreptitious purposes - is fundamental.

Was the Majority Opinion in Bush v. Gore Disingenuous?

Consider those who have described members of the Supreme Court majority in Bush v. Gore as fundamentally dishonest inasmuch as they purported to embrace equal protection arguments that they almost certainly did not believe in.

He has said, that is, that Chief Justice Rehnquist and Justices Scalia and Thomas "don't believe in that equal protection stuff." They signed the opinion, he believes, only because under the circumstances, there had to be some majority opinion signed by at least five justices. After all, it would have been unseemly if the election had been shut down - and George W. Bush declared President - based on the combination of two different opinions of tiny minorities.

If the troika had not joined the equal protection opinion, the Court would have been left with the following opinions: a concurrence in the result joined only by Rehnquist, Scalia, and Thomas (with its reasoning rejected by the Court 3-6); a concurrence in the result joined only by Kennedy and O'Connor (with its reasoning rejected by the Court (2-7); and dissents (some of which ironically would have enjoyed more support than the concurrences, since 4 justices dissented).

Posner suggests Rehnquist, Scalia and Thomas in effect lied about their views to save the nation from this fragmented result - and the Supreme Court from a threat to its apparent legitimacy. In short, he presents them as insincere, but perhaps justified in their insincerity.

Liberals Can, Of Course, Be Disingenuous Too.

My point about judicial - and argumentative - disingenuousness is not intended to be a merely partisan one. One cannot possibly believe, for example, that Justice Brennan truly believed all of the arguments in some of the opinions he authored; instead, he clearly presented certain arguments only because they were necessary to pick up a vital fifth vote. To him, achieving a desirable outcome was well worth the sacrifice of a certain amount of intellectual integrity by dissembling as to his "true" reading of the Constitution.

Moving away from the Supreme Court, it is easy to see that accusations of disingenuousness in argumentation are made every day. For instance, attacks on the motivation of George W. Bush and his associates with regard to the economy often suggest that the Administration is, in effect, lying to achieve its goals. Indeed, Paul Krugman has devoted many columns in the New York Times to suggesting the Bush Administration has been less than honest in the service of its goal of entrenching tax cuts.

Presidential Dissembling, Then And Now

What about the debate over Iraq? I have my own disingenuousness argument to make here: I believe the concern with Iraq over the past several months was caused in substantial part by a (successful) desire to hijack the election.

In addition, I cannot help believing that the war, should it occur, will be motivated at least as much by a desire to seize the Iraqi oil fields as by the desire to bring "democracy" to the undoubtedly tyrannized Iraqi people. In short, I believe the Bush Administration is dissembling as to its motivations for, and the timing of, the war. And of course, many others have expressed similarly views.

If Clinton did offer disingenuous justification, he may be in good company. I was recently told by a well-informed historian that Harry Truman's seizure of the steel mills in 1951--overturned by the Supreme Court in Youngstown Steel v. Sawyer--was basically "pretextual." Truman said he believed the seizure was necessary to protect American troops fighting the Korean War. In truth, the explanation for the seizure, according to the historian, lay far more in Truman's unwillingness to use the mechanisms of the hated Taft-Hartley Act.

Meanwhile, Peter Irons, has detailed the extent to which the Franklin D. Roosevelt Administration basically lied to the Supreme Court in its advocacy of the detention of Japanese resident aliens and Japanese-Americans in the Korematsu case. Its dishonesty may have contributed to the Court's upholding the now-notorious detentions. Of course, the Department of Justice lawyers may simply have been acting as "ordinary" lawyers, who are not necessarily expected to believe their own arguments but, rather, to offer whatever arguments serve the interests of their clients. That many of us expect more of "public lawyers" does not, alas, assure that we will get it.

Should We Return to "Civility," And Stop Claiming Others' Arguments Are Lies?

Some critics see such ad hominem arguments as contributing to our having become an ever more bitterly divided country with, it is argued, a concomitantly weakened authority structure. Some of these critics have suggested the need, especially for lawyers who are ostensibly committed to "reason," to return to an atmosphere of "civility" - in which we would challenge only arguments and never motives, and would assume each other's argumentative honesty even in the face of evidence of dissembling.

Unfortunately, if we were really serious about excluding discussions of motivations, intentions, and pretexts, we would in fact have to transform our notion of much ordinary legal argument (not to mention the ethics of ordinary lawyering). These arguments go all the way back to John Marshall - who insisted in McCulloch v. Maryland, even as he endorsed a rather sweeping vision of national power, that Congress must only exercise those powers honestly, in service of the goals it was supposed to serve.

Marshall thus wrote that "[s]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land." To be legitimate, Marshall continued, laws must not only be "not prohibited," but also "really calculated to affect any of the objects entrusted to the government" (emphasis added).

The Ideas of Pretext, Motivation, and Intent Are An Inextricable Part of the Law

This Marshallian dictum was much quoted at the turn of the 20^th century by judges seeking to rein in congressional power under the Commerce Clause; perhaps understandably, it has been less often cited since 1937. But this does not mean, of course, that our ordinary notions of legal analysis are comprehensible without paying notion to the subjective intentions--as contrasted with their public statements--of decisionmakers. Modern law has followed Marshall's cue in looking behind the statement, to the speaker's true motivations and goals.

Consider, for instance, the enforcement of federal civil rights laws based on the Fourteenth Amendment. The Court has repeatedly held, for example, that it is not enough that schools are in fact racially separate. In addition, plaintiffs in school desegregation suits must also show that the authorities were motivated in their decisions by the goal of achieving such separation. Segregation as a result is not sufficient; it must be combined with segregation as a motivation, an intent, and a goal.

One could offer similar analyses with regard to the dormant commerce clause and the ability of states effectively to put hindrances in the way of interstate commerce. States will always claim to be pure in heart, motivated by the legitimate end of protecting the health, safety, and welfare of their citizens. Challengers, on the other hand, will be equally insistent that what is "really" going on is a constitutionally illegitimate attempt to protect parochial economic interests on the pretext that it serves the general welfare.

As a practical matter, we cannot imagine a legal system that treated every participant as acting in "good faith" and that took every argument at face value. Our legal system is built in substantial measure on what literary theorists might call a "hermeneutic of suspicion" - meaning that one does not just look at a text to find internal logical contradictions, but also to find evidence of the underlying ideologies and interests that are "really" the basis for the claims being made.

A Particularly American Type of Mistrust and Suspicion

Indeed, a "hermeneutic of suspicion" runs rife throughout the American political tradition. A basic rationale for our almost byzantine system of separated powers and divided governments is, after all, a mistrust of authority and the temptations to misuse political power.

Such mistrust most easily manifests itself in an unwillingness to accept self-serving claims about the purity of political leaders' motives or the accuracy of their proffered arguments. "Credibility gaps" are not linked uniquely to the Vietnam War - though that era was certainly formative in the political consciousness of anyone who is now middle-aged.

After all, very little in the ensuing years since Vietnam has suggested that one should necessarily be more trusting of authorities. One can quote Ronald Reagan himself: "Trust but verify." Though offered with regard to Mikhail Gorbachev and what was then the Soviet Union, we are well advised to suspect that those with power, including our own leaders here in the United States, are often attempting to pull fast ones and keep aces hidden up their sleeves.

One cannot possibly understand the "tiers of scrutiny" system, for example, without taking into account the presence of suspicion about claims made by political authority. Every law professor (and practicing lawyer) knows that "minimum rationality" is basically another way of saying, "We'll accept whatever pretextual justification you wish to assert because the Court is no longer in the business of monitoring, say, the regulation of business." "Strict scrutiny," on the other hand, translates as, "Prove it, because we don't trust your surface assertions of benign purpose."

It should not be surprising, then, that those whose authority is questioned have been mounting their own campaigns of what can aptly be called "political correctness." According to this new political correctness, it is deemed, at the very least, bad form and, at worst, out-and-out unpatriotic to question their motives and intentions. Sometimes this involves questioning what they say; other times, it involves what they do not­ say, as when they assure us that secret information justifies, for example, the indefinite detention, without serious judicial scrutiny, of American citizens newly labeled as "unlawful combatants." are deprived of any significant ability to question the charges leveled against them. Whether the (non)speakers are President Bush, Vice-President Cheney, or others such as Donald Rumsfeld and John Ashcroft, they all insist that we should exhibit blind faith in their assertions and actions.

This should be recognized, though, as the power play that it is. The whiff of authoritarianism is in the air, and the answer to authoritarianism can only be "Question Authority." That is, after all, the American (and the American lawyer's) way.