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The aporetic judge—A Commentary by Dan Kahan

The following commentary was posted on the Cultural Cognition Project Blog on October 2, 2012.

The aporetic judge
By Dan Kahan

Judge Mark Kravitz, of the Federal District Court for the District of Connecticut died yesterday from Lou Gehrig’s disease. He was 62.

In my 2011 Harvard Law Review Foreword, I described a style of judicial reasoning and opinion writing that I characterized as “aporetic.”

Aporia is an ancient Greek term referring to a mode of argumentative engagement that evinces comprehension of an issue’s ineradicable complexity.

Aporia is not a state of uncertainty or equivocation (indeed, it’s not really anything that can be described by a single English word I can think of). One can reach a definitive conclusion about a problem and still be aporetic in assessing it.

But if one adopts a position that denies or purports to dispel the difficulty that a truly difficult issue poses, or that fails to recognize the undeniable weight of the opposing considerations on either side, then one isn’t being aporetic. Indeed, in that case, one is actually not getting the issue at hand, no matter how one resolves it. The effacement of real complexity signifies a deficiency in intellectual character.

Judicial reasoning—of the sort that is expressed openly in judge’s opinions—tends not to be aporetic. Of course, most of the issues that courts resolve are not fraught with complexity. But even in those that really are, judges tend to effect a posture of unqualified, untroubled confidence.

This form of comic overstatement is most conspicuous in Supreme Court opinions. Every relevant source of guidance (text, purpose, precedent, policy, tradition, “common sense” etc.) indisputably, undeniably converges on a single conclusion, the Justices emphatically insist. We are supposed to believe this even though the Court’s primary criterion for review is the existence of an issue that has divided lower courts, and even though the Justices themselves often disagree about which outcome in a particular case is supported indisputably, undeniably by every conceivable consideration.

But actually, there’s nothing funny about this. On the contrary, it’s disturbing.

Hyperbolic certitude diminishes the legitimacy of the law by conveying to those who are disappointed by the outcome of a case that that the judge who decided it was biased, and intent on deception.

It also denigrates reason. It embodies in the law an attitude that breeds cynicism about dulls reflection.

In my Foreword, I defended an alternative, aporetic idiom of judicial reasoning that recognizes rather than effaces genuine complexity. Aporia in judicial reasoning, I argued, should be seen as a judicial virtue—because in fact it is. Being able to see complexity and being moved to engage it openly are character dispositions, and they conduce to being a good judge. A judge who is committed to being just will experience aporia when he or she must decide a genuinely complex case; and by resort to aporetic reasoning in his or her opinion, that judge assures citizens generally that their rights are being determined by someone committed to judging impartially.

Mark Kravitz had this virtue. In fact, for me, he was and remains the model of it. Before I had occasion to observe him as a judge, I had (despite many years studying and practicing law) only a dim, inchoate sense of judicial aporia; when I try to make the picture as vivid and compelling for others as it now is to me, I try to describe Mark Kravitz.

Last April, Judge Kravitz decided a case—one of his last—in which members of the Occupy protest movement brought a suit to try to halt the imminent, forcible removal of their tent city from the New Haven Green. He denied their motion for an injunction.

No one can read his opinion, though, and escape the conclusion that the issues it presented were difficult. Indeed, in a tone that was rare in his opinions, Judge Kravitz expressed anger at the city’s attorneys for attempting to avoid—and thus for seeking to tempt the court to avoid—acknowledging the seriousness of the Occupy protestors’ position. Dismissing the city attorneys’ argument that the protestors’ encampment did not qualify as “speech” protected by the First Amendment, the judge wrote: “One would have to have lived in a bubble for the past year to accept Defendants' claim that Occupy's tents ‘could simply mean that the plaintiffs enjoy camping.’ ”

The Occupy movement, in New Haven as elsewhere, aims to exemplify its message: to express the desire that the economically disenfranchised become more central to American public life by literally placing the economically disenfranchised in the center of America's public spaces. Defendants need not deny the obvious political expressivity of this act in order to argue that reasonable limits on acts like this may still be necessary and appropriate.

The protestors deserved an opinion that acknowledged their dignity and public spirit. As disappointed, moreover, as they no doubt were to lose the case, I suspect they likely will be able to make good use of the portion of the opinion I’ve quoted (likely they will see the value, e.g., of including it in a demonstration-permit application, something the New Haven protestors denied the authority of the City to require as a condition of convening a protest on the Green).

Those inclined to distrust the City deserved to know that its stated reasons for ending the protest were being scrutinized by a decisionmakers intent on being fair. They got that, too, from the quoted language, and from the numerous points in the opinion that acknowledged the force and seriousness of the protestors’ arguments even in the course of deciding against them....

We all deserve judges who are unafraid to see, and unafraid to tell us they see, genuine complexity. We have one less judge of this character today than we had yesterday. But by furnishing us such a clear and inspiring picture of what this judicial virtue looks like, Mark Kravitz gave us a resource we can use to assure that there are many, many more aporetic judges in the future than we have ever had in the past.