In this blog I have visited several times the intersection of mathematical probability with what we often call “divine justice” (also known as theodicy). For instance, the odds being diagnosed with any of several types of cancer resemble statistically the winning of a cruel lottery, with statistical annual diagnosis rates per 100,000 people eerily unchanged from year to year. Or take the award-winning documentary Three Identical Strangers, where identical triplets were raised by separate families to very different fates, an application of the ancient gambling practice of drawing of lots, but with real lives at stake.
There is an interesting ethical theory called Moral Luck, first articulated by British philosopher Bernard Williams (1929 – 2003), which notes how a person is often assigned moral blame or credit by others based on probabilistic events beyond their control.  In short, the person was at “the wrong place at the wrong time,” or alternatively at “the right place at the right time,” and whether you believe in the Greek Moirai or not, fate often intervenes in our lives with its life-changing circumstances. You can be tagged a moral hero, or alternatively a moral goat, at the roll of the dice.
And this is about Brett Kavanaugh how?
Which brings us to Supreme Court nominee Brett Kavanaugh. A late-emerging allegation of sexual assault when he was a teenager has derailed the nomination hearings. While at this writing we don’t have any resolution on who to believe (and perhaps we never will), we do have good evidence of circumstances that are clearly tied to moral luck. Judge Kavanaugh’s life-long friend Mark Judge, his Georgetown Prep classmate and identified “wingman” at the alleged assault, has written extensively over the intervening years about the culture of drinking to “stupor” at their prep school parties.  Regardless of what was perceived by the different people involved, the high probability of “drunken stupor” unavoidably increases the probability that untoward behavior did occur. I’m just doing the well-documented math of bad youth behavior here. Alcohol changes the odds by an order of magnitude.
Brett Kavanaugh was very close to his eighteenth birthday at the time of this alleged incident. If the police had become involved, and especially if Kavanaugh were not a white prep school student (again, the well-documented probabilities at work), he could well have been charged as an adult with felony sexual assault, and even if given probation by the court, he would have been tagged officially as a sex offender if that event happened today. This happens all the time to seventeen-year-olds in 2018, “done in” by bad choices with alcohol and the roll of the cosmic dice. And others completely escape the consequences of that same behavior.
The common “God language” expression under these circumstances is “There but by the grace of God…” Funny how the odds of “God’s grace” go up in our society for rich, white prep school boys. In secular terms, this is moral luck at work. At one moment in time, the future changes significantly for two people based on a series of probabilities. One struggles with the moral consequences for decades, and the other goes on to a likely central role in deciding women’s health and freedom issues for the next generation.
Moral luck and the “veil of ignorance”
Whether Judge Kavanaugh should be held accountable to this long-ago incident is, in my mind, not the primary question. In a recent post I discussed the moral philosophy of Bernard Williams’ contemporary John Rawls (1921 – 2002), who articulated the concept of a veil of ignorance in deciding how justice should be meted out in human society. Rawls takes us through the exercise of putting on this figurative “veil” where we imagine that, coming out of our mother’s womb, we do not know whether we will be born rich or poor, male or female, privileged or not. By wearing this imaginary “veil,” we don’t know how we ourselves will rank in the world’s hierarchies.
Rawls then suggested that the only system of justice really worth working toward is the one that you would select if you were wearing that “veil” coming into this life. How would you structure individual versus group rights? How would you structure a healthcare system? How would you mete out punishment? What kind of people would you select to be your judges?
My larger problem with the judicial philosophy of Brett Kavanaugh, reinforced by this incident, and regardless of who is telling the truth, is that Kavanaugh has revealed by his past actions and current reactions that he is far from the model of John Rawls. Instead, the bulk of his judicial decisions come down on the side of the society’s elite far more often than on the side of those who did not have the moral luck of attending Georgetown Preparatory School. The odds have been stacked, the dice have been fixed by Kavanaugh and many of his fellow judges, not to mention the abetting members of Congress.
The greater irony here is that Judge Kavanaugh will likely go on to wear the title of “Justice” while subverting the very concept. Even if Judge Kavanaugh gets confirmed to the Supreme Court, he will forever in the history books and websites be tagged “an asterisk” as has a second Supreme Court justice wearing the taint of sexual abuse. Between this incident, his nomination by a president of questionable legitimacy, and the co-opting of the constitutional confirmation process since the Obama administration by Iowa Senator Chuck Grassley, I would say that the asterisk is well-deserved. I would think that an honorable man would refuse the nomination for that reason alone, which says something about the honor of Judge Kavanaugh.
To use another phrase that is the combination of “God language” (Hindu this time) and modern secular ethics, “Karma is a bitch.”
- Williams, Bernard. Moral Luck: Philosophical Papers, 1973-1980. Cambridge University Press, 2002.
- Selk, Avi. “What the Man Accused of Being Part of Kavanaugh’s Alleged Sexual Assault Had to Say about Women’s Sexuality.” The Washington Post, 18 Sept. 2018.