Law Professor Jack Balkin makes a mistake in logic.
Balkinization: This essay by Gregory J. Wallance in the National Law Journal criticizes the D.C. Circuit's opinion in Parker v. District of Columbia for citing Dred Scott v. Sanford. Wallance writes that "there is no aspect of Taney's opinion that deserves respect, let alone a citation by a court regarded in importance as second only to the Supreme Court." This seems hyperbolic to me. The fact that a certain type of argument appears in Dred Scott doesn't make it a bad argument...
But the fact that somebody cites Dred Scott for Argument X is a powerful sign that they couldn't find another court making Argument X to cite instead. And the fact that a certain type of argument appears rarely except in Dred Scott is a powerful sign that it is a bad argument.
Jeez. These law professors. Reminds me of Gene Volokh saying that he was "agnostic" about whether William Bennett had lost millions in Vegas:
The Volokh Conspiracy: Some casinos are estimating the total losses at over $8 million, but Bennett explicitly says otherwise; instead, he's saying that he's come out pretty close to even (whatever exactly that means), and thus (returning to the previous paragraph) that the supposed casino estimates are mistaken or highly incomplete. This has little to do with statistics -- it's a question of fact. Bennett may be lying, but only if you think the casino estimates are sound, something that the article certainly doesn't prove. That's why I'm not sure who's right.
For Volokh, the fact that people who gamble a lot and whom casinos pay to fly to Las Vegas to gamble are almost surely big losers is simply not a consideration his brain processes in assessing William Bennett's credibility. For Balkin, the fact that Silberman couldn't find precedent in a more credible opinion than Dred Scott is not a consideration his brain processes in assessing the quality of Silberman's argument.
This has to be a form of trained incapacity. Neither of these men are dumb. Yet both cannot, apparently, see the noses in front of their faces.