Kagan- Law All The Way Down, Stephen Hawking- Turtles All The Way Down

June 30th, 2010

During her confirmation hearings, Elena Kagan describes her vision of the jurisprudence as “Law All the Way Down.”

Kagan: Senator Kyl, I think it’s law all the way down. It’s — when a case comes before the court, parties come before the court, the question is not do you like this party or do you like that party, do you favor this cause or do you favor that cause. The question is — and this is true of constitutional law, it’s true of statutory law — the question is what the law requires. Now, there are cases in which it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on the cases that get to the Supreme Court. A lot of them are very difficult. And people can disagree about how the constitutional text or precedent — how they apply to a case. But it’s law all the way down, regardless.

I am pretty sure she is using a derivative of the famous “Turtles all the way down” infinite regression, as described in Stephen Hawking’s A Brief History of Time.

From Wikipedia:

A well-known scientist (some say it was Bertrand Russell) once gave a public lecture on astronomy. He described how the earth orbits around the sun and how the sun, in turn, orbits around the center of a vast collection of stars called our galaxy. At the end of the lecture, a little old lady at the back of the room got up and said: “What you have told us is rubbish. The world is really a flat plate supported on the back of a giant tortoise.” The scientist gave a superior smile before replying, “What is the tortoise standing on?” “You’re very clever, young man, very clever”, said the old lady. “But it’s turtles all the way down!”

So it is law all the way down. Funny how we accept that cliche to understand the law, but we laugh at that cliche when it describes the cosmos. I suppose the big difference is that through empirical research, we can confirm that the earth orbits around the sun. However, the law is not reducible to such precise measurements.

Turtle’s all the way down.