The rhetoric of constitutional absolutism.

• Author: Berger, Eric
• Position: III. Implications through Conclusion, with footnotes, p. 726-757

3. IMPLICATIONS

   1. Costs

      1. The Politics of Cultural Disdain

         The Supreme Court's constitutional opinions obviously matter insofar as they shape constitutional doctrine, but they also play an important role in a broader national constitutional discussion. Although most Americans swear fealty to the Constitution as our civic religion, (352) they disagree strenuously about what it means. Indeed, the country's collective view of its founding document is emphatically pluralistic, embracing numerous values, some in sharp tension with each other. (353) These differences reflect not just political disagreement about single issues but deeper discord over our national identity. (354) The tone of the Court's treatment of these sensitive issues thus affects important discourse about the very nature of American democracy.

         In light of these high stakes, absolutist constitutional rhetoric runs the risk of unduly alienating litigation losers, sending the message that they are cultural outsiders whose understandings of our nation's core values are fundamentally incorrect. (355) To be sure, defeated litigants naturally will be disappointed. That said, many decisions are context-specific, (356) deciding a constitutional question only in the narrow confines of the factual scenario presented. An opinion's rhetoric can therefore help determine whether interest groups supporting losing litigants feel mild disappointment, bitter alienation, or something in between. (357)

         Indeed, a decision's cultural ramifications extend far beyond the legal community. Interest groups and the (often partisan) media report decisions to the broader citizenry, who in turn, fiercely debate the decision's wisdom. While the general public usually focuses on a case's outcome, the opinion's language signals the Court's level of respect for the competing values at issue. When an opinion dismissively rejects the norms on one side of the constitutional ledger, the Court appears indifferent to the harms its opinion may inflict on the losing side. (358) It may, indeed, even sometimes indicate that the harm is deserved. (359) Although losing litigants inevitably experience some sense of loss, as Professor Emily Calhoun argues, those harms might be magnified when the Court disrespects their basic positions. (360)

         Absolutist rhetoric can also distort an ongoing constitutional debate. (361) For example, as noted above, though Heller announced that certain gun regulations would likely be constitutional, (362) popular discussion of the Second Amendment, latching onto the opinion's strong rhetoric, often assumes that any regulation of firearms is unconstitutional. For example, local sheriffs, citing an absolutist Second Amendment, announced recently that they would not enforce certain state gun laws, (363) because, as one sheriff explained, "[i]n my oath it says I'll uphold the U.S. Constitution." (364) Similarly, Guns & Ammo magazine recently dismissed a pro-gun columnist for having the audacity to remind readers that constitutional rights are never absolute. (365) Rather than examining the constitutional merits of various hypothetical regulations, the magazine's editors insisted that no such regulation was constitutional and that all attempts to regulate firearms reflected "powerful forces in this country who will do anything to destroy the Second Amendment." (366) Of course, Heller did not cause these attitudes; the National Rifle Association (NRA) vigorously advocated for absolute gun rights long before that decision. But Justice Scalia's rhetoric in Heller provided further grist for the NRA's mill. (367) To this extent, absolutist language, even if tempered by a nuanced holding, can become amplified as interest groups disseminate it to the public.

         A plausible effect of absolutist rhetoric, then, is that it may sometimes help cut off deeper debate. (368) Opinions that entirely reject one side's constitutional vision can simultaneously alienate opponents and dull the critical sensibilities of supporters. (369) In both cases, they deepen the potential for political discord. (370) When partisan ideologues can cite Supreme Court language to brandish their contempt for their opponents, the ensuing conversation is less likely to include careful discussion. Democracy usually works better when debate is careful and informed. (371) Rather than encouraging depth, absolutist rhetoric encourages people to recast arguments to render them either congenial or not to their views, refusing to acknowledge the law's complexities and internal tensions.

         This phenomenon can extend also to the Court's absolutist factual statements, which contribute to the related problem of balkanized knowledge and understanding. (372) The majority and dissenting opinions in Shelby County painted fundamentally different portraits of racial discrimination and voting rights in the predominantly southern jurisdictions covered under section 4 of the VRA. (373) Such one-sided depictions of the world both reflect and perpetuate the problem of balkanized knowledge in which different groups' factual beliefs are governed substantially by their ideological views. (374)

         Partially as a result of these deep epistemological differences, conservatives and liberals do not just disagree on questions of constitutional application; they "know" different things about the document's fundamental "truths." (375) Sympathetic audiences, then, are more likely to assume their normative preferences are "strong [a]s proofs of holy writ" (376) when Justices they admire vindicate those preferences with great confidence. (377) Indeed, given that many Americans stick to news sources confirming their preexisting political inclinations, (378) it is unsurprising that the Justices' absolutism would be transmitted to people hungry for evidence that bolsters their own one-sided attitudes. This phenomenon, thus, might further balkanize groups whose visions of our basic political structure grow still farther apart. (379) As Professors Simon and Scurich put it, "judicial one-sidedness pushes the opposing parties further apart... entrenching] the boundaries that separate people ... [and] solidifying] parochialism." (380)

         This all may contribute to a culture of political disdain. (381) Extreme rhetoric can slide into hyper-partisan rage, in which audiences angrily condemn political opponents. (382) The opposing side is not simply wrong, but disingenuous, stupid, unpatriotic, and even morally repugnant. Of course, some absolutist rhetoric is more polite than others, but the high stakes of constitutional controversies often provoke strong responses. The result can be a vicious circle of disrespect that transcends ordinary democratic disagreement. To this extent, rhetorical excess is self-perpetuating, with each side angrily denouncing the other.

         This poisonous political culture can interfere with sensible governance. (383) People who accept an absolutist view of the Constitution are more likely to see the Constitution as an ideological battleground, rendering compromise politically impossible. (384) After all, if the other side has committed heresy by desecrating the country's secular religion, then compromising with opponents would be akin to a covenant with the devil. One-time allies who depart from the acceptable agenda are therefore iconoclasts. For example, after the Supreme Court upheld much of the Patient Protection and Affordable Care Act (ACA), Glenn Beck made a t-shirt with the word "coward" under an image of Chief Justice Roberts. (385)

         In light of the prevailing "political outrage carnival," (386) it is easy to see why Congress in recent years has been mostly paralyzed. Our Constitution requires bicameralism and presentment for legislation to become law, (387) and those constitutional requirements, combined with other vetogates, such as the Senate filibuster, make it difficult to pass legislation even in eras of relative political calm. (388) Popular absolutist rhetoric makes it still harder to achieve any kind of meaningful compromise, because politicians and their constituents on both sides are convinced that the other side fundamentally misunderstands America's constitutional foundations. (389) The result is a policy-making logjam and a Congress that now routinely neglects crucial matters like the budget and the debt ceiling. (390) Of course, many other factors contribute to our current political dysfunction, (391) but rhetoric that discourages all political cooperation surely plays some role. (392)

         The Court's absolutist rhetoric thus plausibly contributes, albeit modestly, to a culture in which political enemies treat Court decisions like "the spoils of war" (393) and wield the Constitution as a clumsy weapon in political debate. Of course, social reactions to Supreme Court constitutional decisions depend on the particulars, and losing groups likely will dispute the Court's decisions regardless of its rhetorical tone. But the Court's tone, nonetheless, indicates its degree of respect for a particular conception of America and therefore can help color the terms of future discourse. (394) It also can model the terms of future debate. Indeed, a sarcastic, dismissive opinion can indicate to law students--tomorrow's future lawyers and leaders--that such rhetoric is appropriate in formal legal settings. (395)

         It is important not to overstate the point. The Court's role in contemporary political dysfunction is modest, and the role of its rhetoric, as distinct from its holdings, is likely even smaller. Elected public officials and media pundits play a much bigger role in shaping the country's political culture and discourse. (396) Moreover, the street here runs two ways; just as the Court's rhetoric can modestly shape popular discourse, so too can popular constitutionalism seep into judicial rulings. (397) For example, Tea Party and broader conservative hostility to the ACA may well have helped shape judicial attitudes towards...