Selective Standpoint Epistemology
You can't lecture the world about listening to Black voices, and then dismiss them when you don't like what they say
At this point in history, it is fair to say, there is an arm of the progressive / Democratic coalition that is dedicated to trashing the Supreme Court. From the floating of court packing plans to entertaining podcasts and NCAA-style brackets of the worst Justices of all time, the market on the left for criticism of the Court is endless. The most substantive part of this is the cadre of liberal legal reporters who bash every conservative thing the Court does or threatens to do. It used to be this sort of criticism came out only after decisions, but now, with widely available recordings of oral arguments and order lists on the Internet, the knives come out when the Court is even considering cases.
Obviously, as a political project, this is banal. Democrats don’t like Supreme Court rulings (just like Republicans don’t like some Supreme Court rulings, on abortion and gay marriage), the party and its actors can fundraise off of it, it helps rile supporters up and win elections, and the Court’s decisions often concern important political issues. But it also means that whatever the Court considers doing or does, there is a big market for hot takes from liberal legal journalists about how the sky is falling and they are about to hand another huge victory to conservatives.
So it was this week, when the Court heard Thomas More Law Center v. Bonta. The Bonta case involved a challenge to a state law that required disclosure of non-profit organizations’ donor lists to the State of California. The state was supposed to keep this information confidential, but hadn’t; the lists had leaked and donors had been harassed.
It’s perfectly clear why the First Amendment rights of non-profits and their donors on just about any side of a controversial issue would be threatened by this, and in the past, a much more liberal Supreme Court confronted a similar situation where segregationist Alabama was trying to get the names of NAACP members. That Court struck down the disclosure requirement; NAACP v. Alabama is the key precedent here.
For various reasons, liberals don’t want NAACP v. Alabama extended: (1) they are legitimately afraid of what a broad rule on donor disclosure could do to campaign finance laws; (2) they don’t like conservative organizations taking advantage of a rule formulated to protect the NAACP; and (3) due to their newfound cultural power, they would like to be able to do what the right once did to them and put pressure on people not to donate to conservative causes they see as bigoted and insurrectionist. And liberals are understandably worried about a Supreme Court gung ho on going in the other direction.
But….
Here’s the thing. Those liberal court criticism pieces did not stop there. Rather, remember, the game is not simply to say that you disagree with court decisions or that SCOTUS should go in a different direction- what sells is this constant flogging of the UNPRINCIPLED DECISIONMAKING of a RUNAWAY CONSERVATIVE SUPREME COURT. To pitch the Bonta case this way, liberal commentators had to argue that NAACP v. Alabama was strictly limited to its narrow, 1950’s context, when state officials were colluding with the Klan to unmask NAACP members and violently suppress them, and any conservative justice who would possibly apply such a narrow precedent to a right wing group facing some corporate backlash for opposing LGBT rights or something was OUTRAGEOUS! (I link here to some examples of the commentary.)
There’s one little problem with all of this. The NAACP is affiliated with one of the most famous public interest law firms in the United States. The NAACP Legal Defense And Education Fund (sometimes known as the “LDF” or “Inc Fund”) is the group that devised the brilliant legal strategy that resulted in Brown v. Board of Education. It’s the group that launched the great Black lawyer and Supreme Court justice Thurgood Marshall. This is one of the most prestigious legal activist groups in the country, a stalwart defender of the civil rights of Black people, as well as a law firm that is staffed with some of America’s most brilliant Black litigators, starting at the top with its leader, Sherrilyn Ifill. And, quite importantly, the LDF is acutely familiar with NAACP v. Alabama and what it means for organizations like the NAACP.
The LDF filed a brief in support of the Thomas More Law Center in the Bonta case, which was signed by Ms. Ifill. In it, they argue that, yes, indeed, it is very important for civil rights organizations that Thomas More win their case against the state law, referencing the history of NAACP v. Alabama and how the expression of civil rights organizations will be chilled by a ruling that allows disclosure of donor lists. (The ACLU signed on to the brief as well.)
Slate writer Mark Joseph Stern, one of the liberal legal journalists who specializes in the “conservatives are about to issue another unprincipled decision” hot takes, at least mentioned the LDF’s brief. (The other legal commentators who joined in with their own hot takes on the oral argument and how conservatives were seeking to extend NAACP v. Alabama to matters it was never intended to reach, never even mentioned it.) But here’s what he said about the brief: “These details [about the history of violence against NAACP members that led to NAACP v. Alabama], omitted from the plaintiffs’ account of the case at arguments, illustrate why it is not just inapt but perverse to compare Americans for Prosperity to 1958’s NAACP v. Alabama. (Unfortunately, the NAACP itself filed a brief that fell into this trap, a fact that several conservative justices gleefully pointed out on Monday.)”
The cajones it took Stern to write those sentences! Here’s a white legal journalist who has never represented a client before the Supreme Court (or any court), lecturing an organization filled with some of the nation’s most brilliant Black lawyers, about what a famous case that involved their own organization really meant!
But I think this is telling. Liberals are often lecturing us about standpoint epistemology- the (I think entirely uncontroversial) principle that we should listen to the voices of oppressed people and not assume that powerful rich white males know everything and should dominate every conversation. But this principle cannot be reserved only for situations when it is politically convenient for liberals, e.g., when criminal justice discussions are dominated by white prosecutors and cops, or when discussions about sex work exclude the perspective of women, minorities, and trans people who have actually worked in the profession. “Listening to oppressed people only when they agree with me” is not standpoint epistemology; it’s cynically using the voices of other people to obscure your own white maleness.
Standpoint epistemology clearly applies here. I don’t care how much money you are paid to deliver hot Supreme Court takes, or how much your readers want to hear about the latest Roberts court outrage, when the NAACP’s Legal Defense Fund tells you what their case meant, you listen to them, and not dismiss their perspective as not understanding their own case.
Obviously I write a lot about legal journalism. I continue to believe the central problem is that the folks who cover the courts have no respect for law as an actual discipline that requires training and experience and expertise. But this episode gets at a different issue as well, which might explain such things as why a lot of Democratic party activists were blindsided by the rise of Joe Biden in the Democratic presidential primaries or why the party does not get more credit from Hispanic voters for its immigration positions. To actually practice standpoint epistemology, you have to listen to people when they say things you don’t agree with or dislike or harm your current political project, as well as when they say things that help you in whatever it is you are doing. If Black voters are telling you they don’t like Elizabeth Warren all that much and don’t care about Joe Biden’s alleged casual racism, that’s a viewpoint just as worth listening to as when they tell you the cops are pulling them over too much. If Hispanic voters are telling you they have concerns about undocumented immigration, you need to listen to them, even if the elites in your party are telling you that the only people who are skeptical of immigration are white Republican racists.
It doesn’t mean you have to agree with the people you are listening to. If Mark Joseph Stern and the other commentators had engaged with the LDF’s argument, said why they thought it was worth taking a risk the NAACP and ACLU did not wish to take in order to fulfill other liberal goals, and spelled out why they think that and held a principled disagreement with the LDF’s brief, I wouldn’t be on here accusing them of dismissing the views of smart Black lawyers. Standpoint epistemology is about bringing other voices into the room and taking what they say seriously. But as these Supreme Court commentators demonstrated, that requires real humility and is actually harder to do than people think, especially when your job depends on not listening to them.