So, back to the high and the low. One problem with Balkin’s distinction is that it assumes that political parties are the only players in “low” politics. What about interest groups? Why is ruling in the interests of the GOP horrible but ruling in the interests of the NRA is not? Why is sticking your guy into office by judicial fiat hideous, but sticking your favored, controversial policy into law by judicial fiat A-OK? I can easily see arguments that the former (what Balkin calls low politics) is worse than the latter (part of what he calls high politics), but I don’t think the latter is in any way respectable. To put it crassly, why bother pulling strings for your candidate when you can just write his party platform into the Constitution?

Lawrence Solum of the Legal Theory Blog has some initially confusing, but ultimately helpful stuff to say here, subdividing Balkin’s “low/high” divide into three levels. I’ll further sift the issue and say there are actually four levels:

A–jurisprudential theory, e.g. textualism, originalism, legal realism (maybe?? I’m not sure if that’s a jurisprudential theory or just a historical claim)–anyway, all the various interpretive theories judges turn to in order to figure out how to judge in general.

B–political philosophy, e.g. pro-life, feminist, socialist, environmentalist, multiculturalist, libertarian, whatnot.

C–policy outcome, e.g. legal abortion, racial preferences, concealed-carry laws, school vouchers, same-sex marriage.

D–party, e.g. Dems, Reps.

I fully admit that the interplay between B and A, especially, is troublesome for textualists. Judicial philosophy doesn’t come out of nowhere–it’s likely that the same underlying philosophy that sparks your A-level will also infuse your B-level beliefs. There’s also some overlap between B and C. But in general, and keeping in mind that there are few bright-line distinctions in law, I think my four levels help illuminate why I disagree with Balkin here (assuming I’m reading him right).

Let’s look at an example where people react in a way that Balkin’s low/high distinction doesn’t explain, but my four-level model does: pro-lifers’ response to Casey. See, Casey actually allowed for some restrictions on abortion (waiting periods, parental consent, informed-consent requirement). Minor pro-life victory, right? Incremental C-level gains?

Ha. Pro-lifers generally think Casey sucked like a–well, maybe I shouldn’t use suction metaphors here–anyway, we really can’t stand the decision. And the bit of the decision that comes up again and again in pro-life discussions isn’t C-level (whether abortions became easier or harder to obtain in Pennsylvania), or B-level (whether a fetus has rights), but A-level: the “mystery doctrine.” Quote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Justice Scalia’s dissent calls a different lousy aspect of the Casey decision “Nietzschean,” which strikes me as an adequate description of the thing he’s actually describing but a 100% accurate description of the “mystery doctrine.” (“Doctrine” is being used sardonically here, btw–it’s not a doctrine the way the public-figure doctrine is.) The “mystery doctrine” is one of three things: a) meaningless filler; b) self-serving rationalization of preexisting policy preferences; or c) an A-level jurisprudence that denies the possibility of all jurisprudence. Nice!