Brooks has allowed his curiosity for the latest social science research on cognition and decisionmaking to lead him to make some intellectually sloppy and relativistic arguments. In a column last month, he suggested that all rational thought was an illusion and absolute truth is an anachronistic outpost of dead Greek men.
In today’s column he suggests that judicial decisionmaking is essentially the sum, or difference of, competing emotions. Essentially, Brooks is advancing a theory of judicial decisionmaking called “critical legal studies.” Critical legal studies also shares the opinion that most judicial opinions based on law and precedent are really a cover so a judge can advance his own ideological beliefs. Because case law is so vast and malleable, a judge, particularly one on the Supreme Court, can almost always find a way to justify his opinion through the disguise of legal reasoning.
While critical legal studies has focused mostly on how ideology influences the decisions of jurists, Brooks instead argues it is really emotional impulses that guides them. For Brooks, good judges “seem to derive a profound emotional satisfaction from the faithful execution of time-tested precedents and traditions.” Under this reasoning, there is nothing objectively good about the faithful execution of the law, only that it produces certain desirable emotions.
Good law and good jurisprudence are not desirable because of the emotions they produce, but because they represent the collective judgments of a democratic society in a constitutional republic.
I don’t doubt we all might make snap judgments or have emotional judgments, but if all we had to do was trust our intuitions, then presumably we’d all be great philosophers or Supreme Court justices. Cognitive theory is not a guide on how to search for truth or reach judgments.
Rest assured, contemplative thought is not going away. If David Brooks believes we can do without it, then he is going to have to make a better, more reasoned argument. Of course, in doing so, he might contradict his own argument.
The views expressed in this blog do not represent the views or opinions of Generations United.