Academic journal article William and Mary Law Review

The Rhetoric of Constitutional Absolutism

Academic journal article William and Mary Law Review

The Rhetoric of Constitutional Absolutism

Article excerpt

II. 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.

A. 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. … 
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