Shostack + Friends Blog Archive


Orientation and Supreme Court Rulings

Over at Volokh, Orin Kerr has a beautiful analogy which illustrates orientation issues in reading Supreme Court cases. By orientation, I mean the sum of cultural, educational, and training experience that come together to influence the way people interpret the things they observe. (In other words, what Boyd meant.) Kerr writes (emphasis mine):

 I think Pearlstein misses the point. The real issue isn’t sovereignty, but the culture wars. The Supreme Court’s citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism.

it is a reflection of cultural association, an indication that at least some Justices envision themselves as part of a community that happens to be strongly identified with one side of these highly contested debates.

If you’re unpersuaded, try this experiment. Imagine that instead of citing foreign law in its decisions, the conservative majority on the Court started citing to and discussing the Bible. In particular, let’s imagine that Roper v. Simmons had come out the other way, and that Justice Kennedy’s opinion for the Court upholding the death penalty for 16 and 17 year olds had contained the following passage:

  Our determination that the death penalty is proper punishment for offenders under 18 finds confirmation in the fact that such punishment is recognized in the Judeo-Christian Bible. The Bible repeatedly requires capital punishment for many offenses, and nowhere limits this punishment to those 18 years of age. See, e.g., Levitucus 24:17 (“He that killeth any man shall surely be put to death.”)…

More and more, I find myself using the idea of orientation as a way to evaluate disputes and disagreements between myself and others. I try to respond to the question of “Why is he being so stupid” with the question “What’s the orientation difference that leads to this disagreement?” (Yes, that comes before “Is there one,” because I find there usually is in emotional disagreements.)

It doesn’t always work: Sometimes disagreements are real, over real bits. But much of the time, I find they split on views of privacy or liberty, or in the technical world, windows folks vs. unix folks.