The Volokh Conspiracy - Were the Opinions in Heller "Scholarly"?:

I said yes. Sandy Levinson at Balkinizationsays no, and suggests we are living in "parallel universes." More likely, we are using different standards, and perhaps different definitions of the word "scholarly."

Sandy seems define a scholarly Supreme Court opinion on a historical subject as one in which a Justice approaches the subject matter like an objective scholar, say a historian writing his Ph.D. thesis. That does comport with one definition of "scholarly," but given that Supreme Court Justices are not trained as historians but as advocates (lawyers), and don't have the resources to engage in original, objective historical scholarship while a case is pending even if they wanted to, or even to properly critique the existing literature, I think this is a bit much to ask.

(And yes, the fact that this is a bit much to ask suggests a weakness in originalism; indeed, any theory of constitutional interpretation that requires Justices to consider outside scholarship of any sort is going to be problematic in that (a) the Justices won't be trained in the relevant field; (b) knowledge is not static, and it's problematic to rely on a study done yesterday when a study published tomorrow may completely revise everyone's understanding of the subject; (c) the field itself may not be peopled by "objective" scholars, but by people with an ideological or other bias--there are certainly plenty of those in the field of history; and (d)the Justices will be sorely tempted to pick and choose which studies they wish to rely on.)

Anyway, I was using "scholarly" in the sense of "concerned with academic learning and research." By contrast, in past decades when the Supreme Court considered historical matters, the Justices often, not to put to fine a point on it, simply issued unsupported broad, often assertions for which they gave no relevant supporting citations, and which just so happened to support they outcome they wanted. I gave one example in my previous post, and here's another. In Goldberg v. Kelly, deciding that welfare benefits were a property right subject to procedural due process requirements, the Court made the ridiculous (and highly unscholarly) claim that "since its founding, the nation's basic commitment has been to foster the dignity and well-being of all persons within its border." Tell that to the Cherokees, and to the slaves!

	[David Bernstein, June 28, 2008 at 12:25pm] Trackbacks Were the Opinions in Heller "Scholarly"?: I said yes. Sandy Levinson at Balkinizationsays no, and suggests we are living in "parallel universes." More likely, we are using different standards, and perhaps different definitions of the word "scholarly." Sandy seems define a scholarly Supreme Court opinion on a historical subject as one in which a Justice approaches the subject matter like an objective scholar, say a historian writing his Ph.D. thesis. That does comport with one definition of "scholarly," but given that Supreme Court Justices are not trained as historians but as advocates (lawyers), and don't have the resources to engage in original, objective historical scholarship while a case is pending even if they wanted to, or even to properly critique the existing literature, I think this is a bit much to ask. (And yes, the fact that this is a bit much to ask suggests a weakness in originalism; indeed, any theory of constitutional interpretation that requires Justices to consider outside scholarship of any sort is going to be problematic in that (a) the Justices won't be trained in the relevant field; (b) knowledge is not static, and it's problematic to rely on a study done yesterday when a study published tomorrow may completely revise everyone's understanding of the subject; (c) the field itself may not be peopled by "objective" scholars, but by people with an ideological or other bias--there are certainly plenty of those in the field of history; and (d)the Justices will be sorely tempted to pick and choose which studies they wish to rely on.) Anyway, I was using "scholarly" in the sense of "concerned with academic learning and research." By contrast, in past decades when the Supreme Court considered historical matters, the Justices often, not to put to fine a point on it, simply issued unsupported broad, often assertions for which they gave no relevant supporting citations, and which just so happened to support they outcome they wanted. I gave one example in my previous post, and here's another. In Goldberg v. Kelly, deciding that welfare benefits were a property right subject to procedural due process requirements, the Court made the ridiculous (and highly unscholarly) claim that "since its founding, the nation's basic commitment has been to foster the dignity and well-being of all persons within its border." Tell that to the Cherokees, and to the slaves!