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The immediate cause of Posner’s mistake lies in failing to read three words in the sentence he refers to. I said, “The Court’s ultimate decision means that, in its view, an early abortion does not involve any violation of rights, and therefore that deciding earlier rather than later does not involve any moral cost of that kind.” (emphasis added.) I said, that is, not that the Court’s decision changed the moral facts, but that its decision took a position about what the moral facts are. But Posner’s overly hasty reading of one sentence does not fully explain his mistake. Throughout the book he refers to me as a “moral realist” who thinks that moral facts are independent of anyone’s belief or decision about them and he several times cites an article in which I have defended that view at great length. Why didn’t this suggest to him that the absurd view he here ascribes to me, which contradicts these philosophical positions, was an unlikely one for me to hold?
(5) Posner quotes the following statement of mine: “Anyone who is convinced that slavery is wrong, and knows that his view is now shared by almost everyone else, will think that general moral sensibility has improved, at least in that respect, since slavery was widely practiced and defended.”[xv][15] He insists that this view is a “conflation of public opinion with moral opinion” and says that “this style of argument could have been used in the 1950’s to demonstrate” that moral progress had been made from the time of the Greeks who accepted homosexuality to the present day when most people condemn it.[xvi][16]
He has plainly misunderstood my statement, which doesn’t pretend to offer a “demonstration” of moral progress or even an argument for it. It simply states the obvious: that whether someone thinks there has been moral progress depends on his own moral convictions, so of course a homophobe would think there has been moral progress from the antique Athens to the Georgia one. Again, the context should have made Posner read the sentence more carefully. I was arguing that certain forms of skepticism are incoherent: I said that the familiar view that there is no such thing as moral progress was itself a moral claim, and that people who believe that their own moral convictions are popular cannot consistently deny that there has been progress since a time when their convictions were widely rejected.
(6) “Over the course of his career, Dworkin has endorsed as the legally ‘right answer,’ not just Brown without delay and racial quotas, but civil disobedience [and] nonprescution of draft card burners.”[xvii][17]
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