GOVERNINGWorks

GWorks Reviews: The Myth of Choice

Tue, 8 Nov 2011 13:39:01 -0500

I have a soft spot in my heart for theologically curious lawyers. And Kent Greenfield, professor of Constitutional Law and Corporate Law at Boston College Law School, and author of the newly published The Myth of Choice: Personal Responsibility in a World of Limits (Yale University Press, 26 September 2011), is a theologically curious lawyer.

Two seemingly unrelated experiences inspire Professor Greenfield's book. The son of a Kentucky Southern Baptist minister, Professor Greenfield has always wondered about free will and heaven. And then there is his leading (and ultimately losing) involvement in Donald H. Rumsfeld v. Forum for Academic and Institutional Rights (2006), a lawsuit against the Defense Department for its requirement that universities taking federal funds allow military recruiting on campuses despite military discrimination against gay and lesbian students.

In The Myth of Choice, Professor Greenfield does what you would want a theologically curious lawyer to do. He explores a notion—of choice, of free will—fundamental to both our founding (“life, liberty and the pursuit of happiness”) and the attendant body of laws, institutions and social mores. He seeks to relate historical example and, for lack of a better term, sociological exploration of choice to exhortations about how we behave and might behave—on our own, toward one another and in making the kinds of social assessments (from policy to guilty verdicts) a democracy empowers its citizens and their representatives to make.

To put it in theological terms, Professor Greenfield’s book is a hermeneutic of choice.

One of the book’s strengths (and perhaps a weakness) is its attempt to deal with choice almost generically. This is not a taxonomy of choice. Rather, seen here, choice is an almost amorphous thing we do—in myriad circumstances and with myriad implications.

“Choice” here does not necessarily have its current or controversial political connotations—the oddly styled ‘right to life’ and ‘right to die.’ The Myth of Choice is a meta-exercise. Except it is not. Professor Greenfield has practical—political and, for lack of a better term, psychological—ambitions for his study of choice. He proposes to understand choice in context, through an exploration of history and social science, and to relate these to the better understanding and therefore practice of choice.

In a sense, Professor Greenfield, fresh from resounding defeat at the Supreme Court (Rumsfeld v. FAIR was a unanimous decision to uphold the contested Solomon Amendment), went off into the wilds of social-scientific research and cultural and political analysis to understand what choice means—as a thing we do and as a factor in the Body Politic. The Myth of Choice is a reporting on his research into what biology and neurology say about choice, an offering of his analysis of the dynamics inhering in both political authority and culture, a recounting of visions in the desert.

As the book relates to the science, Professor Greenfield’s argument is to a range of impulses, tendencies, inclinations, susceptibilities and manipulations working alone and together to constrain our ability freely to choose. As the book relates to cultural and political criticism, Professor Greenfield’s argument is to a dynamic, a kind of quiet (sometimes not-so-quiet) persistence and pervasion of imbalances in our relationships to one another, to social mores, to context, even to choice itself that tend to blind us to what Professor Greenfield aptly labels “category mistakes.”

It is on the topic of the blindness of the category mistake and his views on authority that Professor Greenfield is most interesting and vivid.

Discussing the categorical mistake we can make, Professor Greenfield recounts an exchange in Salazar v. Buono, a 2010 case before the Supreme Court involving (legal complexities aside) the placement of crosses at a war memorial on Federal land and the First Amendment’s prohibition of an establishment of religion. During oral argument, Justice Antonin Scalia bristled at a lawyer’s suggestion that the Cross is a specifically religious—Christian—symbol. It is, Justice Scalia insisted, the universal means to mark and honor the dead. The Court repeats this same curious assessment of the neutrality of the Cross in its Opinion.

On the topic of our obeisance to authority, Professor Greenfield recounts Stanley Milgram’s now-famous 1960s experiments at Yale University. Motivated in part to understand Adolf Eichman and Nazi Death Camps, Professor Milgram devised experiments in which lab-coated confederates commanded test subjects cast in the role of “teacher” to deliver increasingly powerful (ultimately, supposedly “lethal”) electric shocks to “learners” (also confederates) who got wrong answers and protested against the increasing effects of the shocks. The tests proved not only that people would follow ultimately fatal orders but that we—at least those of Professor Milgram’s contemporaries he consulted—grossly underestimate just how many of us will go so far. (One now may ask, on this note, whether the test results themselves are as...wait for it...shocking as the fact that the experiment, under modified ethical guidelines, has been repeated over time and with similar results. Plus ça change..., as they say.)

Professor Greenfield’s point: These are examples of the constraints that inhere in context—as we choose. And constraints—biological and cultural—limit our capacity to choose freely.

The point here is not so much that, armed with understanding, we may—finally!—counteract the fatal flaw in the design of choice we have somehow managed to overlook all these years. Rather, Professor Greenfield argues a more “Zen-like” point, that we would do well not to “fetishize” mere choice and to understand the dimensions—the complicated realities—of choice. We would do well to recognize that perhaps the ability to choose among fewer real options may be more of a choice than the ability to select among an exploding and almost numbing and carefully manipulated variety.

In other words, we would do well to let this understanding of choice inform our worldview. Our capacity to choose—our ability to construct useful policy—would improve not because we have an antidote for what poisons choice but because and to the extent our capacity to understand—especially the fragile humanity of choice in situ—would form the basis of our thinking and choosing in daily life and in policy. The reduction in the sheer number of objects from which to choose would not be government tyranny but a thoughtful and empowering curation (to use an exhausted word) resulting in real options and real choice. We might judge less and help more.

This may be where Professor Greenfield’s book runs into trouble—not in the hortatory but the rhetorical sense. Appealing as the exhortation to relate understanding and action may be, it seems to suffer from the same problem that underlies Steven Pinker’s new book, The Better Angels of Our Nature, on the relation between a seeming reduction in violence in the world and the rise of an Enlightenment and post-Enlightenment world.

It is tempting and prevalent to invest our capacity for reason and rationality not only with the ability to understand the mysteries that obtain in the world around us but thereby—therefore—the power to improve ourselves and the lives of those around us. But, I wonder if this, too, is a category mistake. Without more, this equation of understanding and actions is difficult to accept, whether one speaks to history or morality.

It is not that we cannot and do not improve. We can and we do. But, it is not so simple. Historically speaking, the Golden Rule or our understanding of atomic physics are attended not only by Nobel prizes but the invention of the nuclear weapon, its use and, ominously, its proliferation. To my mind, anyway, it is neither necessary nor demonstrated that we improve with a measure of consistency that proves a necessary relationship between our improvement and our capacity to reason or our capacity to understand one another and our environment. And, so far as I understand it, this is not a question Professor Greenfield seeks to answer in depth.

Professor Greenfield is stepping into a long and mighty history of understanding and counseling on the relation of free will to behavior. And, there is great interest and import in mapping the topography of choice. Exploring broad and deep connections among myriad factors that influence choice and exhorting us to think more seriously not just about what choice is but why and how we are attached to choice are of interest, too. We have been doing this for thousands of years.

The trick, it seems to me, is not only in mapping how choice is constrained but in exploring what we do with a different understanding of choice, how and why. Professor Greenfield makes some reference to the why. He does ask whether we want to be a society that tolerates not only, say, poverty but the societal factors that lend to the creation of poverty. And, he does argue that his research into choice can be helpful. But, he does not flesh out this question or cement his vision of understanding choice to acting differently.

In some sense, I wonder if the answer is assumed to be in the asking.

In a world in which Herman Cain’s moralizing intolerance of people he thinks might be poor threatens even Henry Wilcox’s self-serving and isolating sympathy for “the poor”—to say nothing of a vision like, say, Christ’s of the power of the least among us in grace, glory and measuring our goodness in the here and now and at the Pearly Gates—and our politicians view of the threat to shut down government as a bargaining chip, I wonder about this aspect of Professor Greenfield’s book. I worry that we are at a point when a description of the contours of choice, while interesting, lacks a crucial connective tissue and so does not hold a candle to the threat we pose to the anti-historical choices we made at our founding to free at least some of us to pursue liberty together.

I should like to be clear on an important point. I think my criticisms relate to any similar—especially materialist—effort to comprehend and affect understanding and action. There is a tension between the what of something and the why. Just ask the Buddha or St. Augustine or the Founding Fathers. The Buddha and St. Augustine turned to the thorny details of practice and grace in time and our founders turned to process and the Rule of Law, the still points in their turning worlds. I am not sure where Professor Greenfield suggests we turn or why. Empathy?

I hope the answer comes in Professor Greenfield’s next book. He is an able and entertaining (even charmingly self-deprecating) thinker whose expansive and thought-provoking exploration of the relation of choice to context to understanding to policy and back again—an almost-heretical syncretism—in The Myth of Choice is worth reading and, in the world of legal writing, stealing.

EDITOR’S NOTES

For more on “The Myth of Choice: Personal Responsibility in a World of Limits,” please visit GWorks Interviews: Kent Greenfield.

The GOVERNINGWorks Web site is best viewed on the Internet using Chrome, Firefox or Safari. These browsers are available on the Internet FREE for Mac OS and Windows. Readers may download any of these browsers by following the links in this paragraph.

GWorks Interviews: Kent Greenfield (Complete)

Thu, 3 Nov 2011 17:46:46 -0400

On Monday 26 September, Yale University Press published The Myth of Choice: Personal Responsibility in a World of Limits. The Myth of Choice’s author, Kent Greenfield, professor of Constitutional Law and Corporate Law at Boston College Law School, sat down with GWorks Interviews on Wednesday 12 October 2011.

In Part Five, Professor Greenfield discusses how the idea that choice is constrained relates to our desire for morality and a political climate in which politicians use the threat to shut down government as a bargaining position. In Part Four, Professor Greenfield discusses what a baseball player and Supreme Court justices have to do with choice. In Part Three, Professor Greenfield discusses how understanding choice generally might affect a public policy issue like health care. In Part Two, Professor Greenfield discusses how power and markets affect choice. In Part One, Professor Greenfield describes the book and discusses how neurology, biology and culture affect choice.

GWorks Interviews: Kent Greenfield (Part 5 of 5) Conclusion The Good, the Bad & the Choice

Tue, 1 Nov 2011 12:40:41 -0400

[00:00:33:20] GOVERNINGWorks (GWorks)—How does morality and the desire to choose (or not) the good relate to the constraints on choice?

[00:00:39:20] Kent Greenfield (KG)—So, one of the things I realized during this book is that...and I don’t end up being as cynical as the title of my book might suggest. It is actually possible to do better at decision-making and choosing, both personally and collectively, than we often do.

But, the reality is...is that choice is like any other...choice is like a muscle. It gets flabby, if you don’t exercise it and exercise it well. And I’m not just talking about choosing between, you know, Coke and Diet Coke or Diet Pepsi and Diet Coke.

It’s about knowing your own limitations and getting...being prepared for when you’re being constrained and influenced.

So, one metaphor that I use is that in a sense our choices are the product of a battle going on in our brains and our biologies. And oftentimes the battle is being fought on a battleground with a bunch of armies put there by other people. By culture, by marketers, by people who want to sell you things or sell you candidates. And, unless we know that that battle is going on, we don’t have any influence on the battle.

I don’t think we are completely a product of our situation and context. But, we are more a product of our situation and context than we...might think. And the best way to protect ourselves and build that choice is to take note of it.

So, one thing I might say is that, I think as individuals and as public policy experts or lawyers or people interested in culture, if we think more about situation, and less about individual, atomistic decision-making, we actually will do better.

One quick example.

The obesity epidemic in the United States is raging. Right?

Now, about one-third of Americans are obese, about two-thirds of Americans are overweight. And these numbers are...growing and we’re at historical high levels. And, it’s the biggest health care risk in America today.

Now, we can deal with this in...a number of ways. But, one way we could deal with it is we could say, ‘Well, this is a failure of personal responsibility. It’s a failure of each atomistic individual when they choose to eat a Big Mac and drink a Coke rather than eat a salad and drink water.’

And, part of the reason that...many of us carry more pounds than we should, including me, is...that is part of it, right? ...That we should make better personal choices.

But, it’s not all of it. And, may not even be most of it. If we think about the situation that creates the environment where people are now more obese than ever before...it opens our eyes to ways to deal with this epidemic more than just chiding people who are overweight.

We can think about, well, actually maybe we should stop subsidizing corn so we don’t have High Fructose Corn Syrup being the cheapest way to sweeten things, which makes a Happy Meal cheaper than fruit, vegetables and lean meat...and which makes it cheaper to feed your family at McDonald’s than at your supermarket.

Maybe it means that we need to build more parks that...where it’s safe for kids to exercise. You know, there are kids where...there were several kids murdered in Boston this summer out in parks. So, if I were a family living in that neighborhood, I wouldn’t want my kid to go exercise in the park. So, what do they do? They sit at home in front of the TV.

So, obesity is not just a sign of bad personal responsibility; it’s a sign of bad environment and bad situations that creates the context in which people make bad decisions.

[00:04:55:14] GWorks—Do your ideas about choice work in a political environment in which politicians seem willing to shut down government?

[00:05:01:14] KG—I think my voice and the voice of this book is a voice that needs to be heard these days. Again, I’ll return to what Herman Cain said last week: ‘People who are poor, people who are unemployed...should blame themselves.’ Right? And this is essentially the Tea Party mantra: People choose the situation they’re in; so, if they’re unemployed, if they’re poor,...then they are really to blame and we shouldn’t ask anybody else to help.

So, when...the mantra of personal responsibility puts people who are victims of the situation and the world in which we live...blames them...then it relieves the rest of us from doing anything about it. So, what I would suggest is that people start talking about shared responsibility rather than personal responsibility. And, the more we talk about shared responsibility, I think the better off we’ll be.

—End of GWorks Interviews: Kent Greenfield—

To Part One or GWorks Interviews: Kent Greenfield (Complete)

EDITOR’S NOTES

ABOUT GWorks Interviews: Kent Greenfield

GOVERNINGWorks conducted this interview on Wednesday 12 October 2011. GWorks produced and edited this video and its transcript.

GWorks would like to thank Professor Kent Greenfield for his generous participation in GWorks Interviews and Professor Greenfield, Yale University Press and Sabrina Dax, February Partners, for providing a Reviewer Copy of The Myth of Choice: Personal Responsibility in a World of Limits for this interview.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.

The GOVERNINGWorks Web site is best viewed on the Internet using Chrome, Firefox or Safari. These browsers are available on the Internet FREE for Mac OS and Windows. Readers may download any of these browsers by following the links in this paragraph.

GWorks Interviews: Kent Greenfield (Part 4 of 5) A Perfect Game of Choice

Tue, 1 Nov 2011 12:22:57 -0400

[00:00:33:20] GOVERNINGWorks (GWorks)—How do you reconcile the myth of choice with the American political ideal of individual liberty?

[00:00:39:20] Kent Greenfield (KG)—So, this is the $64,000 Question in a lot of ways. Right? And, it’s a question that has...come up for centuries, if not millenia. Right? ...The tension between social freedom, cultural freedom, political freedom and individual freedom. And the dilemma always is, to what extent are...do we...in order to gain social, cultural, political, collective freedom do we need to constrain individual freedom?

Just yesterday, I was teaching Lochner [v. New York 198 U.S. 45 (1905)]1 in my Constitutional Law class. ...If Lochner is about anything, it’s about competing notions of freedom.

You have the Court saying, ‘Look, to ban bakers from working more than 60 hours a week is constraint on the freedom not only of the employers but on the employees.’2 And [Justice Oliver Wendell] Holmes is saying, ‘Look, you know, freedom is constrained all the time by things from...you know...Sunday laws...which at the time constrained businesses from operating on Sundays to any tax regime or what-have-you.’3

So, this is always the tension.

...And my point in the book...of course, it’s...often it’s an unresolvable tension and it’s something people are going to fight about for another thousand years.

But my point is that, I think it’s a mistake to think about it as a conflict between freedom and authority. Or freedom and the State.

It’s different kinds of freedom. And, there’s always got to be a dialogue about what makes the most sense.

Here’s a simple example:

When I commute to work, I am constrained in my freedom that I only can drive on the right side of the road. I don’t have the freedom to drive on the left side of the road. Even if I really, really wanted to and even if I thought that I could do so and manage the risk pretty well...because I’m a pretty good driver. Of course, most people think that they are above average...as drivers. But, in reality, ...my constraint of driving on the right side of the road, makes it possible, makes me free to drive to work because if everybody could choose which side of the road they could drive on, it would be much harder to drive to work and I would be less free than I am now.

So, this is always the tension. Right? When is a constrain on individual freedom on balance worth it in order to gain collective freedom.

So...and I think we’ve always debated about this.

So, a couple of examples.

Think about the...requirement that we add access ramps for the disabled. In a way, it is a constraint on the freedom of businesses, right, that they have to put in ramps, they can’t operate the business as they so choose. But, as a cultural and social and political matter, we want disabled people to be free to enter businesses and we want that even if the market power is insufficient for them to buy that right in the marketplace. Right? If they had the market power to do that, then we would say that businesses would have had the market incentives to put in ramps anyway. But, they probably don’t. But, we think that it is better, and it’s more free, and maybe more just, if not free, to put in the access ramps for the disabled.

So, what does that mean for my book?

I think what it means is that, often, people...I think we fetishize choice more than we should because we...actually are better off with less choice than we think we are. There was a...even though our...some of our greatest philosophers talk about choice, there’s also a reality that people are sometimes happier with...and take pride in things that we have no choice about. Right? I...am very proud of where I grew up. My family. And, I self-identify about things that I have no control over. My sexual orientation. My personality. My...and...maybe other people don’t appreciate my personality but I tend to like it.

So, I think one of the things I have learned about this is that we could all be a little more...satisfied...with the things that we have no control over...Maybe we can be a little more Zen-like with the things we can’t change and we’d all be a little happier. And, as far as politics go, I think the dichotomy between freedom and authority is a false dichotomy. It’s really a competition among different visions of freedom.

[00:06:09:20] GWorks—You contrast former Detroit Tigers pitcher Armando Galarraga and retired Supreme Court Justice David H. Souter with Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia.

How does this contrast relate to understanding individual and public policy choices?

[00:06:21:20] KG—So, here’s the point about Galaragga and Souter:

So, I start one of the chapters talking about the incident that happened in Detroit last summer, I guess, where, I think it was probably the...best example of sportsmanship in my lifetime.

So, Andres [sic] Galaragga was this young pitcher for the Tigers. He was a good pitcher but not a great pitcher. But, he was pitching a perfect game, which is quite rare. There have been more people who have set foot on the surface of the Moon than have pitched a perfect game in the history of Major League Baseball. It’s an extremely rare thing.

He was on his last out. A perfect game is, everybody gets out: twenty-seven batters up, 27 batters down; no errors...no walks...no nothing.

And, he got to his last batter. The batter hits a ball to...first base. The first baseman pitches it to Galarraga, who has raced over to First Base. And...he’s out. He’s...the ball beats the batter by half a step. And, it’s the kind of call that umpires get right...you know....99,999 times out of 100,000.

But, the umpire got it wrong.

And, it was a huge scandal. Galaragga pitched the next guy and got him out. So, actually, it was the first 28-out perfect game in the history of Major League Baseball.

But the thing about it is that Galaragga shrugged and smiled and went along his way and didn’t make a big deal out of it. And the umpire, for his part, apologized. He said, ‘I really screwed this up.’ And they had a meeting at Home Plate the next day. And, it was...on both sides it was an example of something...it was a way of acting that I would hope my son would act or I would act in such a circumstance.

And the reason why that’s important in the book is that...after I talk about all the limits on choice, one of the things that I realized was that what we do when others fail is really a matter of our own understanding of the constraints on other people’s activities and other people’s actions and other people’s choices. People make mistakes. It’s very...you know...everyone of us is human. Everyone of us...one of the things that’s true about humans is that we make mistakes. And so, you’ve got to be empathetic about that.

The reason I talk about Souter is that when Souter resigned a couple years ago, President Obama said he wanted to replace Souter with someone who was empathetic...with a judge who was empathetic.4 It was a big scandal at the time. The Right said, ‘Oh. You know, empathy is just another word for result-oriented judging. You can just choose a side you’re more sympathetic to and choose that side.

Now...conservatives are right about that, that empathy means sympathy, it’s probably right, they’re probably right.

But, I think empathy and the way...the reason why I think Obama was correct to talk about empathy in relation to Souter’s retirement is that empathy is more of an intellectual practice—one that I believe Souter engaged in.

Empathy means, being broad-minded enough to put yourself in the other person’s situation and...be understanding about the constraints of situation in judging their behaviour.

And so, a couple of examples I use...one of which was about...a so-called consensual search on a bus.5 A Greyhound bus is traveling from New York...I’m sorry, from Florida to New York, stopped in the middle of the night in Georgia on the side of the road, three police officers get on board, one stands at the rear, one stands at the front, one walks up and down the aisle, asking people whether they would consent to have their bag searched. Of course, people consent and, in this case, they found cocaine in a...two men’s duffel bags. And, as is turns out...the case was whether this was consensual or not. It gets to the Supreme Court. The Court says, ‘Yes, this was consent.’ And, Souter writes a dissent, saying, ‘Look, the reality of the situation is that these people felt coerced, felt forced to consent to the search. And so, his empathy...his ability to put himself in the situation of someone who was completely unlike him, in a situation in which he had never been, is a good practice for judges and it is a good practice for us as individuals. And, it takes note of the power of situation, which is one of the key themes in the book.

Now, why this has public policy implications and implications for the law, is my thinking... pondering in the book that maybe what we need is to take account of the fact that oftentimes that law needs to have rules and guidelines that allow judges and juries to take account of the situation—not only to let people off the hook but, perhaps, to put some people on the hook that should be.

And my criticism of Roberts, when he says, ‘Look, judges are just like umpires, they call balls and strikes,’6 is that is doesn’t take into account the huge contextual obligations of good judging. You have to know the situation. And, good law allows people to tell their stories and good judges and juries allow those stories to influence their decisions.

—End of Part Four—

To Part Five

EDITOR’S NOTES

1 The so-called Lochner Era, named after the 1905 Supreme Court case, Lochner v. New York, 198 U.S. 45 (1905), describes the time at the end of the 19th and the beginning of the 20th centuries during which the Supreme Court understood almost any economic regulation by government as an unconstitutional interference with individual freedom. For example, in Lochner, the Court held unconstitutional New York State’s attempt to limit the work week of bakers to 10 hours per day, 60 hours per week.

The Lochner Era came to an end in 1937 after the failure of President Franklin D. Roosevelt’s Court-packing Plan and the Court’s decision in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), upholding the State of Washington’s establishment of a minimum wage for women.

For more, please see “Lochner Era,” Legal Information Institute.

2 “The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker.” See, Lochner, 198 U.S. 45, 57 (Justice Rufus W. Peckham).

3 See Lochner, 198 U.S. 45, 75 (Justice Oliver Wendell Holmes, dissenting). “It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.”

4 Watch President Obama announce Justice Souter’s retirement and list criteria for selecting Justice Souter’s replacement:

“I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their own homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

One might note that Professor Greenfield clerked for Justice Souter during the Supreme Court’s 1994–1995 Term.

5 United States v. Drayton, 536 U.S. 194 (2002) (Justice David H. Souter, dissenting). “The police not only carry legitimate authority but also exercise power free from immediate check, and when the attention of several officers is brought to bear on one civilian the imbalance of immediate power is unmistakable. We all understand this, as well as we understand that a display of power rising to Justice Stewart’s ‘threatening’ level may overbear a normal person’s ability to act freely, even in the absence of explicit commands or the formalities of detention. As common as this understanding is, however, there is little sign of it in the Court’s opinion.”

6 Watch now-Chief Justice John G. Roberts, Jr. deliver his Opening Statement at his Confirmation Hearing before the Senate Committee on the Judiciary (12 September 2011) (Chief Justice Roberts’s statement begins at 03:29:30).

“...A certain humility should characterize the judicial role. Judges and Justices are servants of the law not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical; they make sure everybody plays by the rules. But, it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the Judicial Oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the Bench.”

ABOUT GWorks Interviews: Kent Greenfield

GOVERNINGWorks conducted this interview on Wednesday 12 October 2011. GWorks produced and edited this video and its transcript.

GWorks would like to thank Professor Kent Greenfield for his generous participation in GWorks Interviews and Professor Greenfield, Yale University Press and Sabrina Dax, February Partners, for providing a Reviewer Copy of The Myth of Choice: Personal Responsibility in a World of Limits for this interview.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.

The GOVERNINGWorks Web site is best viewed on the Internet using Chrome, Firefox or Safari. These browsers are available on the Internet FREE for Mac OS and Windows. Readers may download any of these browsers by following the links in this paragraph.