Micro-Digressions: A Philosophy Podcast · Spencer Case

Discriminating for the Greater Good Part 2: Law and Affirmative Action

October 30, 2023·1 hr 30 min·5 clips

Stephen Kirshner argues that legal realism suggests there is no law—just predictions of court decisions.

This episode of Micro-Digressions continues a discussion on discrimination, focusing on philosophy of law and the Students for Fair Admissions case. Host Spencer Case is joined by returning guest Stephen Kirshner, a philosopher with expertise in legal theory. The conversation begins by examining Oliver Wendell Holmes Jr.'s legal realism, which defines law as a prediction of what courts will decide. Kirshner contrasts this with legal positivist theories from John Austin and H.L.A. Hart, noting problems like circular definitions and foundational rule validation. He suggests a radical interpretation of legal realism: that law does not truly exist as an objective entity, and we merely act as if it does. The hosts apply this skepticism to judicial reasoning, using affirmative action cases like Bakke, Grutter, and the recent Harvard/UNC rulings as examples where legal rules seem indeterminate. They explore the First Amendment, questioning the origin of its exceptions for dangers like defamation or obscenity beyond plain text or original intent. A central problem identified is the use of "balancing tests" in adjudication, which appear subjective and legislative rather than interpretive. The discussion questions why judges should consider factors like precedent or original intent, given legislative bodies lack a unified mind and intent is difficult to aggregate. Spencer Case leans toward original intent as a constraint on judicial power, despite its philosophical shortcomings. Kirshner challenges this, arguing that choosing a restrictive interpretive method is itself a policy decision, creating a contradiction. The analogy of a science fair judge illustrates a potential defense: institutions require specialized roles with limited duties to function effectively. Kirshner presses on whether role obligations are basic or derive from consent or utility, using the role of a soldier or Supreme Court justice as complex examples. They debate if a justice's role includes promoting justice directly or is constrained by text and values like order and stability. The hosts consider whether order and predictability are components of justice or separate competing values, using hypotheticals about overturning precedent on substantive due process or the Commerce Clause. Spencer Case expresses a practical view that, despite legal weaknesses, overturning a decade-old ruling like Obergefell on gay marriage would disregard reliance interests. Kirshner warns this approach risks judicial lawmaking, moving from interpretation to a clash of values, as seen in debates over fundamental rights like contract freedom versus workplace regulations. The episode concludes by setting aside the muddled precedent in affirmative action cases to directly assess if Title VI or the Equal Protection Clause permits racial discrimination. The tone is a deep, meandering, and intellectually rigorous dialogue between two philosophically informed hosts. The style is conversational and educational, dissecting abstract legal theory before applying it to contemporary constitutional controversies. Listeners interested in meta-questions about the nature of law and skeptical, theoretical critiques of judicial reasoning will find this episode compelling. Those seeking a straightforward, narrative analysis of the Harvard admissions case or concrete legal policy discussions might find the abstract philosophical groundwork too dense.

As heard by us

A careful law-and-rights argument that keeps asking what judges are really doing.

It frames a law-and-rights debate as a question of what law is allowed to mean. Spencer Case and Stephen Kirshner move from Holmes and legal positivism into substantive due process, judicial restraint, and the unsettled idea that judges are either reading rights or creating…

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If you want affirmative action tested through philosophy of law, press play.

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