Judicial Power and American Character: Censoring Ourselves in an Anxious Age

By Robert F. Nagel | Go to book overview

6
Pursuing Visions: Interpretation as Moral Evasion

The constitutional decisions of the Supreme Court are political not merely in the sense that they are based on considerations that go beyond the traditionally legalistic but also in the more specific sense that they take account of political reactions to judicial interpretations. This is, I have suggested, simultaneously widely known and widely denied. It is both a commonplace and a heresy. It is desirable and intolerable. As the abortion cases demonstrate, it happens most dramatically while being denied most emphatically.

It is not surprising, then, that the Court's constitutional opinions, both liberal and conservative, are often written in a way that masks significant considerations. These opinions tend to be long, detailed, and professional. Consequently, the cases indicate a direction and a sense of urgency without revealing any animating vision or underlying judgment. The stream of words is insistent but fundamentally ineffective, baffling. Sentences, paragraphs, pages are massed to distinguish, say, "core political speech" from "commercial speech" or "symbolic speech," yet the doctrinal consequences of these categories often appear to be (despite the sound and fury) inconsequential or nonexistent. 1 Moreover, even where some doctrinal difference can be identified, the outcomes of the cases often cannot be traced to those differences.

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