The title of this blog entry is the title of a 2015 book by Marc O. DeGirolami, which takes an Isaiah Berlin-inspired approach to the issues of interpretation raised by the religion clauses of the first amendment to the U.S. Constitution. Berlin famously critiqued the hedgehog-like view that, in his words, "there must exist a path which leads clear thinkers to the correct answers to these questions." The tragedy of life is that there is no such path, that good clashes not only with evil but with itself; good clashes with good, and some goods will of necessity be lost. Any effort to avoid this tragedy through a Grand Scheme produces a far greater tragedy, planners who try to force humanity to fit their scheme, at any cost necessary. DeGirolami, in much the same spirit, criticizes the "monists" who have a grand scheme in the world of first amendment litigation or, more so, scholarship. Among the first-amendment hedgehogs whom he critiques, the writing duo of C...
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We still have eight Justices on the US Supreme Court, so there will surely be further cases this term where we will see the court equally divided. Of course, even with a nine Justice court there are such moments, as when one Justice recuses himself for whatever reason and the non-recusing justices split evenly. But one case in 1939 stands out as an oddity. All nine Justices participated in a case concerning the very controversial matter of the child labor laws (this was two years after the "switch in time" and the consequences of that '37 jurisprudential shift were still being worked out). The Justices decided that the case involved three distinct issues of law. They then voted 5-4 on one of those decisions, 7-2 on the second, (so plainly nine Justices were each voting) and then declared themselves "equally divided" of the third issue, so they took no position on it. This has left historians scratching their heads ever since. Presumably one of the nine d...