The rhetoric of constitutional absolutism.

• Author: Berger, Eric
• Position: II. Explanations, p. 698-726

2. EXPLANATIONS

No single theory can explain the Justices' rhetorical styles; the calculus differs depending on the particular Justice and case. Nevertheless, explanations for some Justices' use of absolutist rhetoric can be grouped into three general categories: strategic, institutional, and psychological. These explanations can work in tandem or separately, depending on the case and the Justice. Although not every explanation will apply to every case or Justice, collectively they shed much light on the phenomenon.

1. Strategic Explanations

   Some absolutist rhetoric is strategic. Justices try to use their opinions to help steer the law in their desired direction, speaking simultaneously to numerous audiences including lower courts, governmental officials, parties, lawyers, law students, law professors, fellow and future Justices, the media, the general public, and more. On this account, Justices and the law clerks who draft some of their opinions adopt an absolutist tone to persuade other actors of the correctness of their constitutional views.

   1. Absolutism as Demosprudence

      As Dean Robert Post has observed, constitutional law and constitutional culture are "locked in a dialectical relationship, so that constitutional law both arises from and in turn regulates culture." (187) Because the Justices realize that their constitutional views are more likely to prevail and endure if the public accepts them, they sometimes craft their opinions with the general public in mind. (188) Justices, then, sometimes try to "court the people" to enlist popular support for a particular constitutional vision. (189) In this way, as Professor Lani Guinier has observed, Supreme Court opinions can be "demosprudential," engaged in an ongoing, albeit forceful, conversation with the public, encouraging nonjudicial actors to support or oppose the majority's conclusions. (190)

      Justices' demosprudential efforts may be especially aggressive in closely divided cases, when they perceive the need to rebut the other side's contentions. (191) After all, when the Court is unanimous, that unanimity itself sends a powerful message to the public about the country's constitutional norms. In such cases, additional rhetorical force may be less necessary. However, when the Justices--and, perhaps more importantly, large segments of society itself--disagree on an important constitutional norm or social structure, a Justice may deem it especially important to phrase her argument as strongly as possible to rebut the other side. (192) Somewhat paradoxically, then, Justices may be more inclined to use absolutist language in those cases where a strong counterargument exists.

      Demosprudential absolutism can invoke case-specific arguments or appeal to broader principles about the judicial role. (193) For example, Justices sometimes craft majority opinions to seem restrained and dissents to make the majority seem activist. (194) This kind of demosprudence roots its arguments in deeper notions of judicial legitimacy. A dissent will likely have greater resonance if it can persuade a large audience that the majority opinion exceeded the judiciary's limited role of "calling balls and strikes." (195)

      Justices also sometimes aim their demosprudence at specific audiences. Cognizant that the media is a particularly effective intermediary between the Court and the public, (196) Justices sometimes seem to direct portions of their opinion to reporters. Justice Kennedy's majority opinion in Lawrence v. Texas, for example, rings with self-certainty, seemingly directed at a broad lay audience. (197) Lawrence, which invalidated Texas's criminal prohibition of same-sex sodomy, (198) opens with an ode to liberty directed at the general public:

      Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions. (199) Justice Kennedy continues with further language emphasizing that the challenged law violated the equality and dignity of homosexuals, (200) thereby subjecting all homosexuals to a deeply offensive stigma. (201)

      Lawrence's language is consciously demosprudential, both invoking and prompting social change. The Court justified its decision partially by detailing changed societal attitudes towards homosexuality, (202) but its celebration of liberty and dignity also likely played some role in helping bring about more momentous changes. (203) Just over a decade later, same-sex couples enjoy the right to marry in well over thirty states and the District of Columbia. (204)

      Indeed, Lawrence's language conveys a powerful narrative of newly recognized civil liberties and cultural tolerance, adopting an absolutist tone that rejects alternative outcomes. Such absolutist language not only highlights the human costs of anti-sodomy laws but also helped the Court confidently overrule Bowers u. Hardwick, which had upheld a similar Georgia anti-sodomy statute. (205) Although Bowers was incompatible with most Americans' values by 2003, (206) the mere existence of that precedent made Lawrence a more difficult case than it otherwise would have been. (207) Justice Kennedy, then, used absolutist rhetoric to persuade the American people that our nation's fundamental constitutional norms required overruling existing precedent and striking down the Texas statute. (208) The rhetoric resonated in the mainstream media. For example, The New York Times reported on the Court's "sweeping declaration of constitutional liberty" that "effectively apologized]" for Bowers, (209) which had "demean[ed] the lives of homosexual persons." (210)

      Justice Scalia used absolutist language in Heller to similar demosprudential effect, directing portions of his opinions to gun-rights advocates likely to applaud the decision. (211) For instance, in addition to depicting the evidence in a one-sided fashion, (212) he emphasized that the Second Amendment "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (213) Such invocations of "hearth and home" get to the heart of the gun lobby's sacred mission to empower individuals to protect themselves and their families against violent intruders. (214) This kind of language may also indirectly help galvanize political officials, such as state legislators, to see all gun regulations as illegitimate. (215)

      Justice Scalia further appealed to gun-rights advocates by reminding his audience that "the enshrinement of constitutional rights necessarily takes certain policy choices off the table.... Undoubtedly some think that the Second Amendment is outmoded .... [B]ut what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." (216) This language is powerful, but also legally gratuitous. (217) All lawyers and judges know that legislators may not pass laws conflicting with the Constitution. No informed observer thought that the District of Columbia was arguing that it should be permitted to violate the "outmoded" Second Amendment. Rather, the case asked difficult questions about the Second Amendment's meaning and application. To this extent, Justice Scalia offers a celebratory nod to pro-gun advocates, who have long insisted that gun regulations violate their constitutional rights. Indeed, this language may have encouraged some of those advocates to lose sight of that case's limited holding. (218)

   2. Absolutism as Persuasion of Colleagues

      In addition to persuading the public, the Justices naturally hope to persuade each other. Presumably, this is true in any case, but especially so in cases in which a changed vote would alter the outcome. Many scholars have noted that Justices communicate with each other primarily in conference and through their written opinions and questions at oral argument. (219) Given these limited opportunities for interaction, the Justices may draft opinions to try to win votes for their position.

      However, while this explanation may sometimes apply, it often does not. For one, the Justices often do not change their vote after the initial conference, (220) so from a strategic point of view, it would be strange if they crafted their opinions primarily to prompt an unlikely switch. Probably more importantly, a Justice trying to persuade a colleague might prefer more moderate, concessionary rhetoric to emphasize the modesty of the majority opinion. Of course, the relative persuasiveness of a given opinion depends on the issue and the Justices involved, but swing Justices are often undecided because they recognize the strength of the arguments on each side. To this extent, a more measured tone may often be a more effective way to persuade the Justice who considers a case genuinely difficult. Indeed, research indicates that overstatement is rarely persuasive, (221) and Justices authoring opinions in close cases, perhaps intuiting this conclusion, sometimes compromise their reasoning to try to garner a majority. (222)

      From this perspective, absolutist rhetoric may be a sounder strategy in dissents, where a Justice can present her own views without worrying about holding together a fragile...