Selecting Justices : Elena Kagan and her Law School Grades : What Could Be More Irrelevant?

At the New York Times in Kagan Struggled in First Term at Harvard Law Charlie Savage and Lisa Faye Petak discuss Kagan’s law school grades. How irrelevant is that?

I recall well Professor Jack Harlan Friedenthal telling us the anecdote in my law school days that “ ‘A’ students become professors, ‘B’ students go into government, and ‘C’ students make all the money.” There are variants of this anecdote that can be found everywhere in academia, but the core idea is that grades are only one indicator of understanding, comprehension and ability. There is a good argument to be made that someone who gets only A’s is overly conforming and easily subjected by compulsion. “Success” in the real world has many more components than just “graded” intelligence.

I myself got my worst grade in college in a course in which I got among the highest grades on the mid-term and final exams, based on a comparison of exam grades with my fellow students, but the professor, who I hated for his boring and outdated lectures, gave me the lower grade for lack of class participation because I refused to attend his lectures as the semester wore on — after all, I was the one paying my tuition — and I told him so. That is not a lack of “EQ”, but I am simply someone who will not knowingly waste time, especially if I paid for something – else. The “grade” I received had nothing to do with my understanding of the subject matter.

That same principle applies to many college and law school learning situations. Grades are not always an accurate indicator of what a student is understanding as concerns the subject matter of any given course of study. Often, a grade reflects expectations — and views on a given topic — of the grading authority. I know someone here in Germany who submitted his Ph.D. thesis in Economics and got an ‘A’ from one referee and an ‘F’ from another referee so that a third referee had to be called in to settle the matter. From that, one knows that the topic of that Ph.D. thesis was controversial, but the grades hardly reflected subject matter “competence”.

Many Nobel Prize Laureates, e.g. hated the compulsion of school and learned only what they wanted to learn, not all of what they were told to learn. Some did outstandingly well only in fields that interested them.

Albert Einstein wrote:

“In [physics], however, I soon learned to scent out that which was able to lead to fundamentals and to turn aside from everything else, from the multitude of things which clutter up the mind and divert it from the essential. The hitch in this was, of course, the fact that one had to cram all this stuff into one’s mind for the examinations, whether one liked it or not. This coercion had such a deterring effect [upon me] that, after I had passed the final examination, I found the consideration of any scientific problems distasteful to me for an entire year. In justice I must add, moreover, that in Switzerland we had to suffer far less under such coercion, which smothers every truly scientific impulse, than is the case in many another locality….

It is, in fact, nothing short of a miracle that the modern methods of instruction have not yet entirely strangled the holy curiosity of inquiry; for this delicate little plant, aside from stimulation, stands mainly in need of freedom; without this it goes to wreck and ruin without fail. It is a very grave mistake to think that the enjoyment of seeing and searching can be promoted by means of coercion and a sense of duty. To the contrary, I believe it would be possible to rob even a healthy beast of prey of its voraciousness, if it were possible, with the aid of a whip, to force the beast to devour continuously, even when not hungry, especially if the food, handed out under such coercion, were to be selected accordingly.”

– “Autobiographical Notes,” Albert Einstein: Philosopher-Scientist, Paul Schilpp, ed. (1951), pp. 17-19 © 1951 by the Library of Living Philosophers, Inc

That Kagan got a ‘B-‘ in Torts can be understood. Torts is a mess as a matter of law and many of its rules and precedents are contrary to logic and reason. The only way to get an ‘A’ in Torts is to learn and apply by rote learning a mass of confused law-making and contradictory court posturing to hypothetical cases governed by laws and opinions that one regards to be in error anyway. I refer here to one of my postings on punitive damages for a discussion of one aspect of torts that is — in my opinion — in need of a great deal of reform:

US Supreme Court Vacates Absurd Punitive Damages Award in Oregon Tobacco Case : What American Law Should Learn from European Law

Stanley Fish at the New York Times reviews The Living Constitution, a new book by David A. Strauss : What Does the Constitution Mean?

In Why Bother With the Constitution, Stanley Fish reviews The Living Constitution, a new book by David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago Law School. The book by Strauss presents what is at first glance a somewhat startling hypothesis, as Fish relates Strauss’s core conception:

“[T]he Constitution does not play a central role in constitutional interpretation.

In the majority of instances, Strauss argues, “the text of the Constitution will play, at most, a ceremonial role.” Even “when a case involves the Constitution, the text routinely gets no attention,” for “on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy.”

Fish agrees to some extent with this hypothesis, writing:

“At least descriptively, the history of constitutional interpretation would seem to proceed as Strauss says it does, by a process of “evolutionary accretion” and not by an act of fidelity to an original intention, that is, to an intelligent design.”

However, on the whole, Fish disagrees and adopts an originalist viewpoint in his critique:

“The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended?”

Well, yes, and no.

We do not think either question — as framed above — is fully wrong or fully right. Perhaps the truth is somewhere in between?

We ourselves suggest a view of the U.S. Constitution which more closely approaches the interpretation of a work of art.

For example, the painted canvas of an oil painting can be seen as being comparable to the text of the Constitution. It forms the basis for appreciation. It constitutes the original form which is subject to interpretation — yes — but that physical “form” is not the original “meaning”.

As Pablo Picasso said about his famed painting Guernica, which depicts the tragedy of war, but which nevertheless has been subject to widely diverging interpretations:

“…this bull is a bull and this horse is a horse… If you give a meaning to certain things in my paintings it may be very true, but it is not my idea to give this meaning. What ideas and conclusions you have got I obtained too, but instinctively, unconsciously. I make the painting for the painting. I paint the objects for what they are.”

In a similar manner, when the Constitution of the United States contains the text “freedom of speech”, then this text describes “that object for what it is” in the same manner that Picasso painted a bull or a horse, for what they are. The number of interpretations to such a painted object, on the other hand, can be as varied in meaning as the number of people viewing it. Still, the bull remains a bull and the horse a horse.

And so it is also with “freedom of speech” and similar texts in the Constitution.

Just as the actual “meaning” of a painting does not inhere either in the mind of the painter or in the mind of the viewer, the actual “meaning” of any text of the Constitution did not inhere in the entire subset of the minds of the Founders any more than that “meaning” inheres in the minds of anyone who today views the original text. The text depicts “objects for what they are”, but their “meaning” resides outside of their physical presence.

Hence, by consequence, when we select Justices to the Supreme Court, we seek to obtain individuals who do not merely see “a bull or a horse” in a painting,  i.e. by analogy a particular textual clause of the Constitution, but rather we look to find gifted persons who are capable of giving the depicted objects a fundamental understanding within the context of the entire “scene” of a painting viz. the “full text” of the entire document, always — and unavoidably — interpreting those objects from the perspective of the present, with due deference to the past, and with an eye to the future.

Crossposted from and to LawPundit.