The Specter of Science as a Shield for a Cowardly Court

In the 2004-2005 edition of the Cato Supreme Court Review, James W. Ely Jr. took on the formidable task of evaluating the court’s opinions on some of the key cases involving property rights from the prior term.  In the context of his discussion of Lingle v. Chevron USA he notes Justice O’Connor’s assertion that the courts “‘are not well suited’ to scrutinize economic actions” to which he responds with an excellent question: “Why are courts somehow competent to enforce non-economic rights, which often turn upon value judgments, but not economic rights?”  The question is rhetorical with the obivous (and correct) implication that courts are perfectly competent to preside over questions relating to economic rights.  Still, the question itself got me to thinking, how could a committed Progressive attempt to defend the O’Connor view?  

One possibility that occurred to me is that you might find someone arguing that economic theory and calculation have become so complex that only an expert in the field can speak to economic concerns with any sort of legitimate authority.  Of course, if this were true (and in a sense, which I’ll explain promptly, I think it is), it still begs the question of why legislatures not populated by economists should be permitted to pass economic regulations.  I do think that modern mathematical economics and econometrics involve some very difficult concepts and techniques; however, the economic relations conceived by the founders and enshrined for protection in the Constitution have not changed over the years and remain as scrutable as they have ever been.  Derivatives contracts may require heavy number-crunching to determine the values involved, but they are still contracts and any judiciary worthy of the name ought to be able to speak to contractual obligations and priviledges.  I may be showing my Austrian colors here, but I feel that economists concerned with liberty have done the pursuit of that value a disservice by emphasizing mathematics as the fundamental tool of exploring economic theory as opposed to being an ancillary but invaluable aid to the explanation of insights gleaned primarily from mostly verbal logical deduction.  We all know what it is like to be forced to choose between two competing alternatives, and any position that gives cover to otherwise responsible individuals to deny that they understand that choice ought to be condemned.