Balkinization  

Saturday, June 25, 2011

Silly Rhetoric in Supreme Court Opinions

Mark Tushnet

Several Supreme Court justices appear committed to an exceedingly annoying rhetorical trope. (For reasons that will appear, “annoyance” rather than “silliness” is the right term, which makes this post’s heading attention-getting but inapt – precisely the problem with the trope I’m about to describe.)

The trope’s most recent appearance was in Sorrell v. IMS Health, where – in implied rebuke to Justice Breyer’s dissent -- Justice Kennedy wrote, “The Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics.’ It does enact the First Amendment.” The Chief Justice offered a slight variant in Snyder v. Phelps: “As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” Another variant is from Justice Scalia in District of Columbia v. Heller: “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” And, I suppose, the classic is, again, from Justice Kennedy, in Texas v. Johnson: “we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.”

What makes the trope so annoying is that it seems, but only seems, to make an argument in support of a result. Of course the Constitution enacts the First Amendment, and enshrinement in the Constitution takes certain policy choices off the table, and so on. But, the issue in all these cases is precisely what the Constitution enshrines (or precisely what the First Amendment enacts, or precisely what choice the Nation has made.) The trope tells us exactly nothing about that question – which is, after all, the one the Court is purporting to answer.

What the trope does, of course, is provide a snappy sound-bite for reporters to quote. As a contribution to legal analysis, it is completely empty. Of course, rhetoric that works – as this trope apparently does, in light of the justices’ attraction to it – can’t be silly. But, all in all, the trope is rhetorical in a pejorative sense.

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