Why Justice Goldberg Cared So Much About Privacy

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11 Responses

  1. Joe says:

    “Insight can come from personal experience. Among other lessons from this history, it suggests some virtues of having judges and justices with a wide range of personal experience.”

    No no. Everyone is fungible. What are you Obama?

  2. Orin Kerr says:

    Interesting post, but doesn’t the virtue of having judges and Justices with a wide range of personal experiences depend on the persuasiveness of the positions that are thought to result from them?

  3. Shag from Brookline says:

    Joe: Is Justice Clarence Thomas fungible with Thurgood Marshall? (Were you tongue in cheek?)

    Does Orin recognize the persuasiveness of Thurgood Marshall’s personal and PROFESSIONAL experiences? Not many Justices had the uphill, continuous battles that Marshall fought and endured.

  4. Peter Swire says:

    At some level, Orin is correct. Someone from a sheltered background, for instance, might not understand the troubles that other people go through.

    Along with Marshall, another example in our lifetimes is Sandra Day O’Connor, who could not get a law firm job when she started despite being at the top of her class at Stanford Law School. It’s simply very hard for others in a case conference to say “that’s not a big deal” when a person in the room can tell a truthful anecdote about what it is like from the other side.

    Here’s a speculation — campaign finance cases might seem different to the Justices if they had a couple of people in the conference who had had to spend x% of their time (where x is large) raising money to stay in the House or the Senate. The corrupting influence of the money chase is more persuasive when one of the Justices has lived that experience. Practical experience with something is different than even the best theoretical understanding.

  5. Joe says:

    Yes, Shag, you can infer a snark there. Thomas had his own struggles all the same. How personal experience affects a person is also not totally fungible.

    As to #2, this is clearly a weighing of various things, and the operative word there was “can” come. No one thing guarantees anything really.

  6. Orin Kerr says:


    My point is that experience can produce a range of different opinions. One person who works extensively with a corrupt union under repeated investigation might take from the experience that investigations are dangerous, and will end up with a more pro-privacy view. Another person with the exact same experience might conclude that investigations are necessary to fight terrible corruption, and will end up with a more pro-law enforcement view. I agree experience is good; it beats ignorance. But whether experience leads to what is termed “insight” or “bias” generally depends on whether one agrees with the conclusion that has been reached in light of that experience.

    Shag, as often happens, I recognize you are making an ideologically-driven point but I am not entirely sure what it is or how it relates to the conversation.

  7. Shag from Brookline says:

    Orin: Apparently you continue to suffer from VC-itis.

  8. Orin Kerr says:

    Is that inflammation caused by exposure to comment threads?

  9. Shag from Brookline says:

    I’m not the one suffering from VC-itis, so I suffer not from inflammation (not even ‘rhoids) from either VC, which rumor has it is a subsidiary of Commentary.

  10. Paul Horwitz says:

    Orin, isn’t your position correct or possibly correct at the individual level, ie. not every “diverse” experience results in sound judgments or subsequent policy views on the part of the individual, but less so in the aggregate? I thought the virtue of diversity (not of any particular kind) on the bench was its potential for useful aggregations of information and experience, not simply that individual judges will be able to “empathize” in particular cases.

  11. Orin Kerr says:

    Paul, I thought Peter was making an argument at the individual level, not the aggregate level. The aggregate is tricky, in part because it is an empirical question that is very difficult to evaluate accurately.