Reaction to: The Fallacious Rhetorica of Racism- The Challenges of Applying 'Reliable Social Science'

Observing "that logically coherent, unanimous decisions concerning racial classifications are possible when members of the [Supreme] Court have credited the more objective findings of social scientists instead of relying on their own socially embedded views," Patrick B.N. Solomon's The Fallacious Rhetorica of Racism endeavors "to demonstrate the in-coherency of arguments both for and against affirmative action efforts in the Court's opinions by analyzing the logical fallacies in the rhetoric employed by individual Justices." Solomon does so by effectively excerpting passages from a number of Supreme Court affirmative action decisions in order to show the extent to which, in each instance, the Justice quoted operates under a set of unstated presuppositions that ultimately inform, if not shape, his or her understanding of the legality of racial preferences. Though Solomon's objection to this form of suppositional decision-making is both clear and, for the most part, well-supported, less clear is the basis for his suggestion that reliance upon social science research can act as a potential cure for the problem he identifies. Early in his Article, Solomon makes the claim that "reliable social science can restrain the worst excesses of rhetoric by functioning as techne, or craft." He continues, "[s]cientists," social scientists presumably included, "like craftsman, are rooted in a shared tradition and are thus more likely to favor incremental change over radical innovation." This observation, borrowed from Brett Scharffs' The Character of Legal Reasoning,' suggests that Solomon's Article will make the case for a form of judicial incrementalism grounded in the social sciences. Unfortunately, The Fallacious Rhetorica of Racisi does no such thing. Instead, the Article devotes most of its attention to pointing out instances in which Solomon believes Supreme Court Justices have indicated their employment of common-sense judgment in deciding affirmative action cases. Such gut-based decision-making, Solomon argues, stands in sharp contrast to the Warren Court's unanimous opinion in Brown v. Board of Education, which he attributes to an all-too-rare, yet admirable "trust in sociological evidence." Even if willing to overlook the methodological problems with the social science evidence upon which the Brown Court purportedly relied and the fact that it is far from clear that the social science evidence referenced in Brown was dis-positive or even persuasive, upon finishing Solomon's Article, one is left wondering how a judicial decision-making process rooted in social science might be applied on a going forward basis. In this regard, one of Solomon's examples is illustrative. In discussing Parents Involved in Community Schools v. Seattle School DistrictNo. 1, Solomon highlights Justice Breyer's dissenting observation that '"dozens of studies' have shown that (1) 'black students' educational achievement is improved in integrated schools as compared to isolated schools, (2) black students' educational achievement is improved in integrated classes, and (3) the earlier that black students are removed from racial isolation, the better their classroom outcomes."' But in the same case, as Solomon observes, Justice Thomas points out that while "[s]ome [studies] have concluded that black students receive genuine educational benefits [through racial mixing or balancing] . .. others have been more circumspect," and some "have concluded that there are no demonstrable educational benefits." Even if one is willing to accept this premise that judges and Justices should rely more heavily upon the empiricism of social science research in reaching and supporting their conclusions, Solomon leaves unanswered the questions of what social science counts as "reliable" and who or what entity should make this determination (though he does suggest two interesting possibilities'), particularly where there exist multiple studies reaching contrary conclusions, as in Parents Involved. To his credit, Solomon acknowledges this challenge, but he offers no concrete solution. Absent that, his thesis that judges and Justices should base their decisions upon "reliable social science" leaves much to be desired. One final point deserves mentioning: The Fallacious Rhetorica of Racism suffers from a general surplus of jargon. By my count, Solomon identifies (and italicizes) at least a dozen fallacies by employing terms of art, including: hypostatization, vicious abstraction, straw man, appealing to the masses, sweeping generalization, poisons the well, false analogy, authority of one, composition, appeal to fear, special pleading, bifurcation, appeal to tradition, and hasty generalization. Few of these terms are defined or explained, and in most instances, their role in supporting Solomon's argument is left to be deduced by the reader. While I have no doubt that these specialized terms could be useful if set within the proper context, as employed in The Fallacious Rhetorica of Racism, they act primarily as a distraction rather than as an aide in producing greater understanding.