The Myth of the Myth of Neutrality

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Performing fairness can make us fairer. F ew people are neutral about neutrality these days. Sophisticated thought, certainly, has turned against it. The very ideal, were told, is misconceived, at best a ruse for prettifying partisanship. Following the recent contretemps at Stanford Lawwhere an administrator, trying to quiet protesters who were heckling a conservative judge, spoke in a way that appeared to side with the protestersthe law-school dean cited the 1967 Kalven Report , from the University of Chicago, stressing the importance of institutional neutrality. Almost as soon as she invoked that august defense (half a century old, please note), eyes rolled. One scholar declared that it was extraordinarily difficult to call out the judges slick doublespeak while claiming to do so from a position of political neutrality. Whatever roles we play in public life, after all, were hardly free from political and ideological leanings. If our personal values are truly important to us, shouldnt they inform everything we do? Why shouldnt we all just put our cards on the table and be open about whats in our hearts? All sorts of peoplejudges, journalists, physicians, administrators of public institutions, you name itmaintain, in their professional capacity, some pose of neutrality. U.S. Chief Justice John Roberts famously likened a judges role to that of an umpire. (Its my job to call balls and strikes, and not to pitch or bat.) Len Downie Jr., who ran The Washington Post from 1991 to 2008, was so determined to avoid the appearance of bias that he didnt even vote . (So that I never make up my mind which party, candidate or ideology should be in power.) But critics are now convinced that this posture amounts to either self-delusion or manipulation. Tom Rachman: Americas is-ought problem In How Judges Think , Richard A. Posner, an eminent legal scholar who was, for many years, an appellate-court judge, shook his head at the mirage of legalism, a model whereby judges are merely applying statutes to the facts of a case. Judges are less likely to be drunk with power if they realize that they are exercising discretion than if they think they are just a transmission belt for decisions made elsewhere and so bear no responsibility for any ugly consequences of those decisions, he wrote. In his opinion, the Supreme Court is the most political court of alland many have joined in concurrence. A political action group that aims to expand access to abortion has bluntly warned against the meaningless umpire line that conservative nominees use in front of the Senate Judiciary Committee: When they get on the court they push their conservative ideology and overturn precedent. Is neutrality even attainable? No journalistic process is objective, Wesley Lowery, a former Washington Post reporter, observed in a widely discussed New York Times opinion piece from 2020. And no individual journalist is objective, because no human being is. Given the failures of neutral objective journalism, he urged another ideal: moral clarity. Some critics reject neutrality because they dont believe that we can be objective; others reject neutrality because they do believe that we can be objective. Is it even possible for the administration of a university dedicated to seeking the truth to be neutral about matters that can easily be analyzed using objective methods? asked Holden Thorp, a scientist and former university chief, in an opinion piece for The Chronicle of Higher Education . Neutrality, in his view, is a squirrelly stratagem: Faculty, staff, and students know the presidents are human beings who have views on these issues. Many of them knew the president before they got in the role. So, who are they fooling by saying theyre neutral? Nobody. He wonders that university administrators tie themselves in knots trying to somehow stay neutral on issues that are clearly in the purview of research and teaching at their institutions. H overing above these arguments is a larger question of political morality: Can and should the state itself be neutral? Liberalismwhich, taken broadly as an approach to governance, stresses the liberty rights of individuals and their equality before the lawhas traditionally prized some notion of neutrality. Perhaps the most vigorous opponent of liberal neutrality in the past century was the German jurist and political theorist Carl Schmitt. In his essay The Age of Neutralizations and Depoliticizations, written in 1929, he indicted liberalism for pretending that all persons and perspectives were entitled to equal standing and that conflicts of vision could and should be worked out through the peaceable, rule-governed debate and deliberation of legislatures and courts. He especially complained about the way that what wed call the mainstream media promulgated this vision, effectively depoliticizing politics. Politics could never really be supplanted with liberal proceduralism, he argued; real politics was, at bottom, about crushing your enemies. In some ways, Schmitts thinking seems in sync with sophisticated thought in our own times. He despised the cult of Big Tech, or what he called the torpid religion of technicity. In his view, technology was bound to intensify conflict, not ameliorate it, and the technologies of mass communication were instruments for the domination of the masses on a large scale. Where people imagined that courts and officials might impersonally apply norms to cases, Schmitt insisted that what he called decisionismthe rulings of an arbitrary, personal willwould and should play a crucial role alongside those norms. The most powerful impulse in the organization of societyand the one to be earnestly resistedwas the striving for a neutral domain. What we instead needed, he thought, was something like moral clarity: a ride-or-die embrace of a comprehensive set of ideas and values that identified what was good and what was evil. Schmitt, notoriously, embraced one solution to the permissive practices of the Weimar Republic. When Hitler came to power, he joined the Nazi Partyno pose of neutrality there!and, for a while, served as one of its leading legal theorists. In a 1938 book of political theory, he blamed Jewish thinkers, including Baruch Spinoza and Moses Mendelssohn, for advocating forms of governance that would accommodate pluralism, the inclusion of minorities and individual freedom of thought. He regretted that their ideal of the neutral state had gained some traction, burdening government with managerial and procedural responsibilities to treat people evenhandedly. Schmitt was prescient in attacking neutrality before most liberal theorists even recognized the importance of the concept. In recent decades, many theorists have tried to articulate the core idea of liberal neutrality. In The Ethics of Identity , I argued that the key ideal is that the state treat people of diverse social identities with equal respect: A public act may disadvantage people of a certain identity, but it should never disadvantage them because they are regarded as people of a certain identity. (So, for instance, the placement of doorknobs in public buildings may disadvantage people who are left-handed, but not because they are regarded as left-handers.) Pluralism requires this form of neutrality, what Ive called neutrality as equal respect. The state doesnt belong to any one group of citizens. But even if we favor the pluralism that Schmitt detested, how should we reckon with the gap between our human biases and the fair-mindedness we affect in our public roles? Erving Goffman, the great sociologist, distinguished between our front stage conduct and our backstage conduct. (He was fascinated by the contrast between the way waiters behaved before customers and the way they were in the kitchen.) Is it then all a matter of dramaturgywith secret agendas lurking behind the judges robes, the reporters pad, the provosts bland reticence? M y colleague Michael Strevens is a philosopher of science, and in his book The Knowledge Machine , he took a hard look at a hard problem: Scientists themselves arent really dispassionate and objective. Theyre affected by their position and their temperament, prone to power politics and vanity and grudges. When theyve settled on a research program, its difficult to get them to give it up. They are, Strevens says, all too human. What, then, explains the triumph of modern science? One way of putting it is that, in their professional roles, these white-coated hot messes have to pose as, well, scientists. Theyve all signed onto a shared etiquette of argument. Pretty much everyone came to agree on what counts as a legitimate move in this game. Theyre going to resolve their disputes by coming up with experiments, designed to support or rule out one position or the other. When they write up their papers, they aim to leave out animus and emotion and other forms of subjectivity, in a process he calls sterilization. In science, Strevens stresses, reasoning (the way you actually made the inferences that you did) is private; argument (the way you defend your results to your colleagues) is public. Skeptics insist the public pose of objectivity is a ruse that conceals the subjectivity of actual scientists. What they dont grasp is that the public protocol, the front stage performance, has power. Its a fiction that is not merely useful, but indispensable: a fiction that creates its own reality, delivering a world-changing cascade of objective facts. In short, the social roles we chooseincluding those that distance us from overt partisanshipmatter. Imani Perry: Why I reject the gospel of objectivity Jurisprudence is far from any kind of science. But note that from 2008 to 2021, the most common vote count for a Supreme Court ruling was 90. (Unanimous decisions have varied in frequency year by year, from as high as 66 percent of rulings to as low as 29 percent.) Because the high-profile rulings are the divisive ones, were far more conscious of them, but what Posner calls legalismstatutory interpretation, unentangled in culture-war issuesis still the norm. And although Posner, who finds much to commend in the legal realism that emerged a century ago, is an advocate of pragmatism, an approach thats mindful of results and free from what he describes as the fig leaf of some grand model of exegesis, he concedes that the pragmatic judge is a constrained pragmatist. He meant that judges are rightly boxed in ... by norms that require impartiality, awareness of the importance of the laws being predictable enough to guide the behavior of those subject to it (including judges!), and a due regard for the integrity of the written word in contracts and statutes. Protocols of neutrality do make a difference. It isnt that judges are not political; especially in cases that arent tightly tethered to case law or the Constitution, we know that they are. (We also know that politics, when theyre our politics, are to be honored as principles.) But the norms of legal argument surely limit the courts discretion. If we were encouraged to flout those norms, our decisions would become more political (or, for those on our side, principled). That fig leaf does us favors. Keep it on, please. Journalism is a trickier topic, because some fine journalists are overtly allied with a cause and work for overtly political outlets. In the 18th and 19th centuries, newspapers tended to be organs of a party. But lets focus on the professional norms that, over the past century or so, became entrenched in the mainstream media. I dont mean the outlandishly demanding I dont vote credo: Even Thomas Hobbes distinguished between faith and confession, whats in your heart and whats on your lips. Nor should we pledge ourselves to both-sidesism. Accuracy, not balance, is the proper aim. Still, talk of moral clarity supposes a consensus we dont have. Like todays progressives, the conservative cleric Richard John Neuhaus was also an enthusiast of moral clarity, warned against self-deceptions about value-neutrality, and thought that a political order required a shared sense of moral purpose. The similarities end there. The way to stop discrimination on the basis of race is to stop discriminating on the basis of racethats Justice John Robertss idea of moral clarity with respect to affirmative action, but probably not Justice Ketanji Brown Jacksons. The standard professional protocolsspeaking to all the involved parties, foregrounding facts rather than feelings, verifying even what you might be inclined to believe, being transparent about sourcing, maintaining some independence from the people or organizations youre coveringcan make reporters better, sometimes by buffering their human passions. Performing fairness can make us fairer. T he social roles Ive been talking about are ones in which we find ourselves performing public actionsa category that applies not just to government officials but to people who run organizations, including businesses and nonprofit institutions. Yes, there are some pragmatic considerations here. If youre an officer at a state college and depend on appropriations from the state legislature, the welfare of your institution may inhibit you from delivering your opinions about gun control. My job is to win friends and influence people, the president of a state college in Georgia told The Chronicle of Higher Education . Administrators may be striving to maintain relations with multiple constituencies: trustees, alumni, faculty, students. So theyre careful about what stands they take, cognizant that failing to take a stand can sometimes result in discord, too. And plenty has been said about the related quandaries that business leaders have tried to negotiate. Read: The myth of neutral technology But theres another objective here: assuring members of an eclectic community that all will be treated with respect. If you manage a corporation, employees want to be reassured that youre going to treat them fairly. If youre a university president, particular student groups shouldnt feel that you harbor a grudge toward them. Neutrality, here, is neutrality as equal respect: the promise that people wont be disadvantaged in virtue of their identity, including partisan identities. It doesnt involve the pretense that you personally have no views, but it may involve refraining from expressing some of your views. Faith need not be confession. Something like this concern applies to the classroom. Even if a professor is a registered Democrat, Republican students should be confident that they wont be treated worse than their peers simply by virtue of being Republicans. Nobody should want an instructor to be indifferent among scholarly arguments, but students shouldnt feel disfavored because of what or who they are, even the student writing a thesis on the political theology of Carl Schmitt for her liberal professor. Maybe it goes without saying that what counts as a virtue in the public realm may not be one in the private realm. Ballplayers want the umpire to be neutral; they dont want their spouses to be neutral. In the casual intimacy of backstage life, we can rage, revere, condemn, and voice our rooting interests. We each have highly specific conceptions of what kinds of lives are worthy of respect; as citizens, were entitled to promote our visions. And precisely because were entitled to our own comprehensive conceptions of the good (and the awful), securing a modus vivendia way of dwelling peaceably together amid disagreements about valueis the ultimate aim of liberal neutrality. Our public roles arent a ruse when our commitment to these roles is real. Critical theory of one sort or another, long a mainstay of a humanistic education, teaches usin ways that are often invaluableto see through the pose of disinterest, the rhetoric of dispassion, the stance of neutrality. The problem comes when seeing through something prevents us from looking at something. Its a childish illusion to think that what happens backstage is the truth and what happens onstage is a lie. As individuals, were entitled to fight for what we believe in. But in a pluralistic society, the ideal of neutrality helps keep the fighting fair. When you buy a book using a link on this page, we receive a commission. Thank you for supporting The Atlantic.