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The rhetoric of constitutional absolutism.


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. 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 coalition of colleagues. (223) Indeed, the dissenter's absolutism, though more counterintuitive, may be less misleading in that the dissenter is obviously not speaking for the Court. The dissent's absolutism, then, will never be confused with the law today, but it aspires to change the law tomorrow.

Thus, even if absolutist language only infrequently changes the minds of current swing Justices, it can influence future Justices, thereby appealing, as Chief Justice Hughes put it, to the "intelligence of a future day." (224) This influence can be relatively direct, such as when a lawyer or law student latches onto language she finds particularly persuasive and subsequently ascends to the Supreme Court. It can also occur less directly, such as when the language gets adopted by popular movements and ultimately helps shape the discourse surrounding a particular legal issue. (225) In all events, Justices realize that tomorrow's Court may revisit today's judgment, and they may choose language hoping to persuade those future Justices.

3. Absolutism as Rule of Law

The Justices may also sometimes use rhetorical absolutism to enhance the rule of law by imbuing their opinions with a sense of inevitability. (226) Even in cases with strong arguments on each side, Justices may fear that equivocal reasoning would expose "the terrifying arbitrariness that underlies much of the legal system." (227) By insisting in absolutist terms that the Constitution unequivocally demands a particular outcome, a Justice presents the law as clear and objective.

Absolutist rhetoric thus implies that the Justices' own policy preferences have nothing to do with their decisions. (228) It, therefore, helps justify an unelected judiciary's exercise of power over the political branches because that exercise of power merely reflects fenforcement of the land's highest law. In this way, absolutist rhetoric can sometimes mollify Justices' anxiety about the Court's countermajoritarian function. (229) Similarly, the Court, as in Graham, may use absolutist rhetoric to assert the existence of a national consensus, thus ostensibly mitigating the countermajoritarian problem --that arises when it invalidates a democratically enacted statute. (230) Whether these rhetorical strategies effectively reinforce judicial legitimacy is, of course, another question, but some Justices may think that they do, or, at least, may feel like they need to pretend that they do.

Justices similarly may rest constitutional judgments on absolutist factual statements, thereby suggesting that their legal views hinge on empirical facts, not normative values. (231) In Shelby County, for instance, the Court rested its holding on the "fact" that race-based voter discrimination was largely a thing of the past. (232) Of course, the four dissenters viewed those facts very differently, but the majority may have thought that its reliance on "facts" insulated it from criticisms that it was unfairly biased against the Voting Rights Act or minority voters.

Justices may also think that strongly worded opinions can reinforce the rule of law by providing better guidance to lower courts, litigants, and other governmental actors, all of whom must follow Supreme Court precedent. This explanation is ultimately unconvincing, because it confuses the clarity of a holding with the rhetoric justifying that holding. A holding may be emphatically defended but imprecisely stated. Alternatively, a court may concede that a case is close while still issuing a clear, easily applied holding. Nevertheless, some Justices, cognizant that lower courts must follow their ruling, may confuse the two. Moreover, even if they do not, Justices may believe that lower courts may be reluctant to extend an equivocal opinion to similar cases if they fear that the Court itself does not fully believe in its decision. (233)

4. Absolutism as Formalism

Absolutism can also be part of a related rhetorical strategy to present the law generally as orderly, rule-based, and objective, thereby further enhancing the rule of law. (234) Under this approach, absolutism not only tries to convey the inevitability of a particular decision but also facilitates a broader project to imbue the law with clear rules, thereby decreasing judicial discretion and appealing to the autonomy of constitutional law to justify the Court's constraint of the political branches. (235) This presumption of clear answers implies that legal interpretation is formalistic--that is, that the law, including the Constitution, provides observable rules unconnected to a judge's own value system. (236)

Justice Scalia is probably the Justice whose absolutist rhetoric most often reflects such formalism. Justice Scalia often views the law formalistically, seeing obvious answers where others see ambiguities. (237) He prefers rules to standards, because rules provide stricter guidance to future courts. (238) Standards, by contrast, are more malleable and thus increase judicial discretion. (239)

To this extent, some absolutist rhetoric may reflect not merely a rhetorical flourish to support a particular outcome but instead a more fundamental insistence that constitutional interpretation ought to proceed with clear rules. (240) For Justice Scalia, the law has and should have a rigorous and rigid structure. (241) This intellectual edifice is an impressive construct, but it is also inflexible insofar as it cannot conceive of provisions meaning something different from (Justice Scalia's idea of) the provision's original conception. This is a vision of law that has difficulty admitting doubt because the entire structure rests upon an intricate architecture. Consequently, contrary evidence must be contradicted or explained away so as not to undermine the structure's foundation.

By contrast, other Justices with a more pragmatic outlook are probably less likely to embrace absolutism because they tend to see law less objectively. A pragmatist like Justice Breyer, for instance, is more likely to acknowledge constitutional indeterminacy. (242) For example, in his dissent in Printz v. United States, Justice Breyer noted that "the Constitution itself is silent on the matter" of federal assignment of responsibilities to state officials, thus removing the need or reason "to find in the Constitution an absolute principle." (243) Whereas the absolutist insists on unyielding principles to resolve cases, the pragmatist more willingly accepts that constitutional questions can be difficult, ambiguous, and context-laden.

In constitutional interpretation, formalists sometimes gravitate towards originalism. (244) Though there are several variants of originalism, (245) many originalists believe that the Constitution's meaning should be determined by identifying "meanings that are conventional given relevant linguistic practices" at the time of ratification. (246) Those meanings are "facts determined by the evidence," (247) and, consequently, can be presented in an ostensibly objective light. Judge Bork's view that "[a]ll that counts is how the words used in the Constitution would have been understood at the time" reflects the formalist's optimism that a clear, objective meaning can be located. (248)

Interestingly, the originalist's interpretation of the evidence not only determines the outcome of a given case but also purports to lock in a constitutional provision's meaning forever. By confidently asserting a provision's original meaning, absolutist rhetoric camouflages the boldness of relying on contestable or obscure historical facts to forever set constitutional meaning. (249) Absolutist rhetoric, then, can be a strategy that both asserts a particular provision's original meaning and reminds future courts that that original meaning, once identified, ought not be disrupted.

Predictably, the divide between formalists and originalists, on the one hand, and pragmatists and living constitutionalists, on the other, sometimes reflects political differences. Though there are obviously important exceptions, conservatives are more likely than liberals to gravitate towards originalism and formalism. (250) Perhaps this interpretive preference is outcome-driven: conservatives favor originalism because they think it is more likely to yield outcomes they like, and liberals oppose it for the same reason. (251) But differing attitudes towards originalism may also reflect disagreement about the notion of legal objectivity. Whereas liberals tend to see the Constitution and other legal texts as underdeterminate, conservatives are more likely to identify objective definitions that fix constitutional meaning. (252) On this account, absolutism helps safeguard a formalist conception of the rule of law, because it insists on objective meanings (originalist or otherwise), thereby ostensibly preventing judges from fashioning legal rules out of their own normative commitments. (253)

B. Institutional Explanations

1. The Politics of the Judicial System

Another set of explanations for the Justices' absolutist rhetoric is institutional, rooted in various political and judicial structures and practices. To begin, the country's broader political landscape helps shape the judiciary. Though judges are removed from everyday politics, in some senses, politics does shape their behavior. (254) Perhaps most importantly, ideological considerations play a prominent role in judicial appointments, especially at the Supreme Court level. (255) Though the Justices are subsequently insulated from direct political pressure insofar as they enjoy salary protection and life tenure, (256) the politicized nature of the judicial appointments process determines who ascends to the Court. (257) In recent years, the confirmation process has become especially partisan. (258) Whereas some mid-twentieth-century Justices, like Chief Justice Stone and Justices Brennan and Powell, were nominated by a President of an opposing party, (259) it is almost unthinkable that a President today would knowingly select a Justice with a different party affiliation. To some extent, this shift is because the two major political parties are far more ideologically distinct than they were in the mid-twentieth century, (260) but it is also because ideology today plays a much more prominent role in the appointments process. (261)

In all events, presidents try to select confirmable Justices who reflect their own values. Although some Justices end up disappointing the President who appointed them, most Justices are carefully vetted and share ideologies that are consistent with many of the appointing President's general views. Through written opinions, these Justices can articulate and sometimes entrench the view of the law that helped get them their job in the first place. Justices, of course, can also express their views in other ways, such as speeches at well-publicized events organized by groups like the Federalist Society and American Constitution Society. Judicial opinions, however, remain the best way for Justices to make their mark on the law and society.

2. The Court's Internal Culture

The Court's own institutional practices also help explain absolutist rhetoric. Although majority opinions speak for the Court, the Court's internal operations reflect and encourage each Justice to speak for herself. Justice Powell once described the Court as nine small independent law firms, which collectively create a competitive, entrepreneurial culture. (262) Justices apparently rarely discuss cases in person with each other outside conference. (263) They also rarely collaborate on the written product. Of course, Justices frequently suggest that an authoring colleague change his reasoning. (264) However, unlike, say, lawyers collectively drafting a brief, it is commonly understood that the Justices' suggestions are intended not to improve the quality of the team's final product but rather to refine a legal point so that it is substantively palatable enough to join. (265) An opinion for the Court speaks for the institution, but it usually is authored by a single Justice, not a committee of the majority.

Equally importantly, unlike some other legal systems, the U.S. legal system permits disagreement among judges. By contrast, some European countries make it a crime for a judge to publish a dissent or even make known that she disagreed with the majority decision. (266) The justices on the South African Constitutional Court take a middle ground approach, allowing dissents but meeting numerous times to try to find common ground when disagreement persists. (267) Because the U.S. Supreme Court permits and tacitly encourages separate opinions, the Court acknowledges that disagreements about the law's content are a natural part of the business of American judging.

The irony is that by permitting internal disagreements, the Court fosters a sense of independence, which encourages each Justice to insist that his view of the law is uniquely correct. This sense of independence is especially powerful in contemporary times. While Chief Justice Marshall persuaded his colleagues that the Court should abandon its practice of seriatim opinions and speak with a single voice, (268) Justices started to dissent at increased rates, starting in the 1930s and accelerating in the 1950s. (269) This trend continues still today. (270)

The increase of separate opinions has helped the absolutist tone flourish, even as their very existence belies the notion that those cases have obvious answers. This rise of separate opinions perpetuates each Justice's sense of independence and willingness to express individual views more often and forcefully, sometimes with a recognizable writing style, which, intentionally or not, may be prone to absolutism. Justice Scalia's opinions, for instance, sometimes sarcastically brush off opposing views, refusing to engage seriously and respectfully with their strongest arguments. (271) Justice Kennedy sometimes adopts a grandiose style that celebrates his preferred constitutional values at a broad level of generality so as to make a case seem easier than it really is. (272)

The rise of judicial independence also likely discourages Justices authoring majority opinions from fully exploring counterarguments. Separate opinions are so common that Justices may sometimes omit discussion of contrary arguments, because they believe another Justice will or should make her own case herself. Obviously, Justices sometimes must moderate their views to hold together a majority coalition, (273) but their collective sense of independence helps perpetuate rhetorical absolutism.

In addition to fostering judicial independence, this culture may also result in a collective action problem. Even a Justice disinclined to write an absolutist opinion might fear that an equivocal opinion would look weak in comparison to an absolutist opinion on the other side. Indeed, there likely is something to this concern. Readers sensing that one side is more confident than the other may tend to assume that the more confident side must be correct. Justices, then, may sometimes write absolutist opinions because they fear that the other side will.

Relatedly, because it is generally understood that opinions reflect a particular chamber's work product, some Justices may be willing to sign onto opinions, including absolutist opinions, even if they would not have written the opinion the same way themselves. A Justice, of course, will not join an opinion with which she fundamentally disagrees, but she may sign one if she agrees with the general reasoning, even if she would not have phrased her arguments as strenuously. As Professor Cass Sunstein has noted, many people who lack firm convictions end up believing what other relevant people believe, and judges are not immune to these cascade effects. (274) A judge inclined to agree with certain colleagues as a general matter on particular issues, then, may become convinced that an absolutist opinion is correct enough to join. The judge who feels especially strongly about an issue, by contrast, may be more likely to draft a separate absolutist opinion than join a more moderate one.

Absolutist rhetoric has long been a feature of some Supreme Court constitutional opinions, (275) but it is worth noting that some commentators have noticed a rise in disrespectful Supreme Court rhetoric in recent years. (276) If this perception is correct, the more politicized appointments process and the rise of separate opinions may help explain the change. The Court's shrinking docket may also play a role, as it gives the Justices more time to hone "rhetorical flourishes." (277) Justices today may also be relying on law clerks more heavily. (278) Although extremely talented, clerks' legal experiences are usually limited, and they may compensate by drafting opinions to sound confident. (279) Collectively, then, these shifts in the Court's institutional culture may help explain the apparent rise of absolutist rhetoric.

3. Dispute Resolution and the Institutional Role of Lawyers' Arguments

A final institutional explanation behind absolutist rhetoric is that lawyers' briefs and oral arguments frame cases for the Court, and the Justices, like all judges, may rely on the lawyers' arguments to shape their own opinions. On this account, the Court's primary institutional role is to resolve disputes between the parties before it, (280) and the parties' framing of these issues necessarily shapes the resolution of those disputes. Lawyers, of course, sometimes frame their arguments in absolutist terms to maximize their briefs' persuasive power, (281) so it is inevitable that judges picking sides would sometimes latch onto the absolutist arguments that persuaded them in a particular case. (282) To give just one example, Justice Scalia's opinion in Heller tracked the respondent's brief's absolutist arguments on some important points in that case. Respondent contended with great certainly that "the Second Amendment's preamble cannot limit, transform, or negate its operative rights-securing text." (283) The majority opinion concluded identically, writing, "apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause." (284) Similarly, just as the respondent's brief concluded that the historical evidence definitively proved that the phrase "keep and bear arms" did not have an "exclusively military connotation," (285) so too did the majority opinion announce an identical conclusion. (286) Of course, there is nothing wrong with a judicial opinion coming to the same conclusion as a legal brief, and Justice Scalia certainly had strong evidence on his side for these propositions. It is also understandable that the respondent's brief did not identify contrary evidence; that was the petitioner's job. What is striking, however, is that the Court, like the respondent, also depicted the evidence as entirely one-sided, even though, as the dissent demonstrated, there was important contrary evidence. (287)

Of course, lawyers' arguments only explain so much. Though the Court often does accept the parties' framing of a dispute, it also often injects its own interests into a case, shaping the contours of a decision as it sees fit. Indeed, with increased frequency, the Court has asserted its prerogative to set its own agenda, regardless of the litigants' wishes. (288) Moreover, with the rise of the Internet, the Court often performs its own in-house research, thus further freeing it from lower court factual findings and the parties' own assertions. (289) To be sure, the lawyers' briefs still matter a great deal, but given that the Court sometimes reframes a case itself, (290) its use of absolutist rhetoric cannot be fairly traced just to the arguments of the lawyers before it.

C. Psychological Explanations

Psychological explanations also shed light on the Justices' choice of language less as strategic judgments, and more as a manifestation of less conscious phenomena to which most people, including judges, are subject. Like the explanations more generally, these psychological phenomena can be interrelated but, for ease of presentation, I discuss them separately.

1. Confirmation Bias and Cultural Cognition

Like other people, the Justices are subject to the "unconscious tendency of individuals to process information in a manner that suits some end or goal extrinsic to the formation of accurate beliefs." (291) Professor Dan Kahan has explored this phenomenon of motivated reasoning with particular attention to cultural cognition, which "refers to the tendency of individuals to conform their perceptions of ... policy-consequential facts to their cultural worldviews." (292) Professor Kahan argues persuasively that individuals are likely to seek out information that supports positions they normatively favor. (293) They similarly seek out information bolstering viewpoints associated with groups with which they identify. (294) Many people are then likely to credit or dismiss evidence selectively based on congeniality to personal and group identity. (295)

Psychological research into this phenomenon further suggests that confirmation bias shapes people's evaluation of evidence, so that it bolsters preexisting normative preferences, beliefs, and expectations. (296) Rather than concede that evidence is complicated and contradictory, people seek cognitive coherence. (297) They therefore try to avoid "persistent uncertainty" and often "adjust their assessments of more equivocal pieces of evidence to match their assessment of more compelling ones." (298) As Francis Bacon noted centuries ago, "The human understanding, when any proposition has been once laid down ... forces everything else to add fresh support and confirmation." (299) Thus, people unconsciously adjust their assessment of equivocal pieces of evidence to match their preexisting worldview and therefore tend to think that answers come easily, because the evidence all points in one direction. (300)

Although judges sometimes do better than lay people at resisting certain cognitive biases, research suggests that they are not immune from them. (301) Indeed, Justices deciding constitutional cases face professional pressures that may make them especially prone to motivated reasoning. Evidence of constitutional meaning can be complicated and conflicting, but, unlike scholars, Justices do not have the luxury of emphasizing these tensions. (302) They instead must decide cases and justify their decisions.

Moreover, because constitutional cases can present numerous kinds of arguments pointing in different directions, Justices may sometimes be prone to relying on intuition rather than judgment to simplify their decision-making process. Intuitive judgments typically are "automatic, heuristic-based, and relatively undemanding of computational capacity." (303) Intuition can be surprisingly accurate, (304) but sometimes good judgment requires the decision maker to override that intuition with more deductive, deliberate decision making. Judges, however, do not always rigorously check the correctness of their intuitions, and, even if they do, that deliberation is often colored by the initial intuition. (305) Indeed, as Daniel Kahneman and Amos Tversky have argued, because judges have confidence in their preexisting views and intuitions, they also are likely to overestimate the consistency of data supporting those views and to derive too much confidence from them. (306) Like other people, then, judges may be prone to process information to support their preferred outcome. (307)

Cultural cognition biases, thus, help shape Justices' approaches to constitutional decision making. As we have already seen, whereas Justice Scalia interpreted the historical evidence in Heller in favor of an individual right to bear arms unconnected to militia service, Justice Stevens read the evidence to support an opposite conclusion. (308) As other commentators have noted, it is probably no coincidence that in a case with difficult, conflicting evidence, the Justices usually considered conservative voted in favor of gun rights, whereas the Justices usually considered liberal voted against them. (309) As Justice Holmes once put it, "One has to remember that when one's interest is keenly excited evidence gathers from all sides around the magnetic point." (310)

These cognitive biases apply not just to the factors that shape legal determinations--for example, the meaning of the Second Amendment--but also the factual landscape to which law is applied--for example, the existence of voting practices discriminating against racial minorities. As Kahan points out, Justices sometimes resort to supposedly empirical fact-finding for strategic reasons to pretend that the facts, rather than norms, guide decisionmaking. (311) In Shelby County, for instance, the majority based its decision on the deeply contested factual conclusion that race-based voter discrimination has been mostly eradicated. (312) Although this effort to root contentious decisions in facts rather than norms may partially reflect an effort to avoid denigrating the losing group's constitutional vision, (313) it can also hide the extent to which norms shape the Justices' factual conclusions.

Cultural cognition, thus, helps explain absolutist rhetoric, because it helps show how Justices, mostly unwittingly, might sort through conflicting evidence to confirm rather than complicate their preexisting worldviews. (314) Having sorted through the evidence in this way, a Justice then may believe that a case is easy. On this account, absolutism reflects not so much a rhetorical strategy as a Justice's "hermeneutical circle" in which she interprets new evidence in accordance with her own intuitive sense of the world, which is simultaneously reinforced by her interpretation of the new evidence. (315) Justices, then, may discuss constitutional cases as though they are easy because they consider the evidence in a manner that makes cases seem easier than they really are.

2. Self-Certainty and Overconfidence

Another psychological explanation for absolutist rhetoric is that the Justices simply believe they are correct and use opinions to express candidly their views of the law. Given the Justices' exceptional pedigrees and deep experience in interpreting and applying legal texts, it is no wonder they would have confidence in their conclusions. Absolutist rhetoric, then, may reflect a Justice's self-confidence and her related frustration that her colleagues were not clear-headed enough to see the right answer.

This judicial self-certainty might be understood as a kind of overconfidence bias. (316) Psychological research in judgment and decision making shows that many people display a tendency for overconfidence, (317) overestimating the correctness of their estimates in answering moderate to difficult questions. (318) Similarly, many people are prone to a superiority bias, overestimating their abilities relative to others. (319)

Judges are hardly immune to these heuristic biases. (320) Psychological research has demonstrated that lawyers, as a class, are especially prone to overconfidence biases, (321) often predicting with great certainty the likely outcome of litigation only to have future events prove them incorrect. (322) This penchant for overconfidence may be related to the fact that lawyers have a keener interest in and greater control over the outcome of their predictions than do other professionals, such as, for instance, meterologists. (323)

While Supreme Court Justices' work obviously differs from that of other lawyers, the Justices' long experiences as lawyers may make them prone to the same kind of overconfidence. Indeed, having reached the pinnacle of their profession, each Justice has especially good reason to consider himself a superior lawyer, thereby further boosting his confidence. Moreover, while lawyers enjoy some control over the outcomes of their cases, Supreme Court Justices often enjoy far more; by persuading a handful of colleagues, they can shape outcomes to coincide with their views and thereby bind the rest of the country. Additionally, male lawyers are particularly susceptible to overconfidence. (324) Two-thirds of the current Justices are male (and, of course, the vast majority of Justices through our history have also been men), so it is possible that the Court's historical gender demographics have bent the institution towards overconfidence. (325)

This point should not be overstated. Good lawyers are probably less prone to overconfidence than average or bad lawyers. Good lawyers, after all, more accurately predict the outcome of litigation than other lawyers; (326) that ability to predict outcomes accurately helps explain their professional success. (327) Most Supreme Court Justices, of course, were once excellent lawyers. From this perspective, the Justices should be less susceptible to this cognitive bias than other lawyers.

Nevertheless, Justices may transfer their deserved confidence in their professional abilities into a false confidence that they can determine "correct" constitutional outcomes more accurately than their colleagues. (328) Predicting the outcome of a case before a particular court is not the same thing as announcing the answer to a constitutional problem. The former can be empirically tested; the latter cannot be. A future Court may someday revisit even a unanimous Supreme Court constitutional decision. Indeed, the very fact that some Justices think there is an objectively "correct" answer is, to some extent, symptomatic of overconfidence, because it pretends that there is an objective answer to an inquiry with many components, some normative. Moreover, though the Justices' past success may give them confidence in their own legal judgments, that confidence may desensitize them to the talents of their colleagues, who are similarly accomplished. Although a Justice's sense of superiority over the average lawyer is usually deserved, his sense of superiority over his colleagues is likely far less deserved.

3. The Psychology of the Opinion-Writing Process

The psychology of the opinion-writing process may also help explain absolutist rhetoric. Sometimes the writing process can help convince the author of the manifest correctness of the position she asserts. (329) This is likely especially true for argumentative prose, like a judicial opinion, in which the writer's primary objective is to support a given thesis.

The Court itself is aware of this phenomenon. (330) The assigning Justice recognizes that an authoring Justice can convince herself during the drafting process, and consequently sometimes assigns an opinion to a swing Justice in the hopes of holding together a fragile majority. (331) The Court, thus, has noticed the phenomenon psychologists call "self-generated persuasion," in which a person generating a message ends up believing the message more than she previously had. (332)

The writing process, indeed, can involve not just the articulation of thought, but also the "transformation of thought." (333) Occasionally, a Justice realizes that an opinion "will not write" and changes his vote or legal rationale. (334) Sometimes, however, Justices conceal the parts of the opinion that "will not write" and overemphasize the parts of the opinion that will write. (335) As Professor Chad Oldfather explains, the writing process sometimes encourages writers to overemphasize the verbalizable aspect of an explanation, producing arguments that sound more ironclad than they really are. (336)

To this extent, the writing process sometimes subconsciously leads a writer towards rhetorical absolutism as she tries to defend an outcome as persuasively as possible. (337) In trying to explain why the arguments on one side of the ledger are more powerful than those on the other, the writer sometimes finds it rhetorically easier to reject one line of arguments entirely. It is pithier to dismiss a counterargument categorically than to acknowledge its merit but explain why, on balance, it should not prevail in a given context. It also often sounds more persuasive. Thus, the writing process sometimes blinds the writer to alternative arguments and commits her more fully to the line of reasoning upon which she has embarked. (338) The writing process, then, can be a journey not only of discovery but also of self-deception, sometimes exaggerating the relative persuasiveness of one line of argument while simultaneously down playing the force of arguments supporting the opposite outcome. (339)

The writing process also forces the author to winnow down her key points. (340) It would be impossible (and unwise) for judges to include every relevant point in an opinion. A Justice, then, must make decisions about which arguments and facts to include. For example, the judicial opinion must set forth a factual background that boils down a complicated record into a concise, cohesive narrative. (341) This process necessarily requires a series of simplifications; a written appellate opinion simply cannot capture a case's complete record, which in turn cannot fully comprehend the actual world's rich complexity. (342) Moreover, an authoring judge must present the factual narrative so as to highlight those facts upon which the decision's legal holding rests.

The opinion-writing process, then, requires simplifications that either deliberately or inadvertently can facilitate absolutism's one-sided worldview. The judge cannot depict the world from all possible angles, so she must ignore arguments and facts that would needlessly clutter the opinion. But the decision about what to leave out often involves value judgments. Some facts are plainly extraneous, but some facts that seem extraneous to the majority may be critical to the dissent. (343) A judge hoping to write a concise opinion may end up writing an absolutist one if she shortchanges points that are crucial to the other side, or if she insists that her necessarily simplified representation of the law or facts is indisputably correct.

4. The Justice as Advocate

A final critical factor shaping judicial rhetoric is that most American judges are used to thinking and writing like advocates. The advocate-turned-judge has great practice building a convincing case and tearing down opposing arguments. Most judges, including Supreme Court Justices, have spent large portions of their professional careers as lawyers and are accustomed to thinking along adversarial lines. Indeed, starting in law school, the adversarial style is so ingrained in the lawyer's psyche that even the attorney who has not spent most of her career litigating often writes like an advocate. (344) Judges, like most lawyers, then, have perfected the art of making arguments and defeating opposing arguments; drafting opinions in another style is psychologically very hard for them, especially when colleagues advance contrary arguments inviting rebuttal. (345)

In an adversarial system, it is entirely appropriate that lawyers argue their side as strongly as they can while simultaneously trying to rebut the opposing side. Indeed, the Model Rules of Professional Conduct require lawyers to represent their side "zealously." (346) Towards this end, lawyers understandably feel the need to press their arguments with great confidence. (347)

Justices, of course, no longer represent clients. However, when people have written and thought in this adversarial style for decades, transitioning to another form of thinking and writing is often hard, especially when the status quo is for judges to write very much in the same style as lawyers. (348) Because lawyers have often been trained to eschew doubt, many lawyers may see judicial doubt not as a reflection of intellectual honesty but rather as an admission that a judge is deciding based on personal values. (349) We should not be surprised, then, to find that the Justices' opinions read a lot like lawyers' briefs--emphasizing their strongest points, trying to conceal or explain away their weakest points, and dismissing counterarguments. (350) Some judges may consciously choose this rhetorical style, but many may simply fall into it because they have been doing it for decades. (351)
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Title Annotation:II. Explanations, p. 698-726
Author:Berger, Eric
Publication:William and Mary Law Review
Date:Feb 1, 2015
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