Friday, October 11, 2013
Thanks to Colin for telling us about his interesting piece on "The Virtue of Obscurity" in Supreme Court opinion writing, with specific reference to (surprise!) Justice Kennedy. We're glad to have him here. I appreciate that it's a short piece, but let me make a couple of critical or questioning remarks about the piece, if only because I would appreciate hearing more of his views on the subject, here or in longer work.
The questions are related and I'm not sure it matters which comes first. But as a preliminary matter, and without wanting to be too cute about it, I would appreciate getting a clearer definition of what Colin means by "obscure" or "obscurity." He seems to define it mostly as by negative implication, as the absence of qualities such as clarity and specificity. As a matter of everyday language, or even casual professional talk about judicial opinions, I have no problem understanding the term, and absolutely no problem locating it somewhere in the vicinity of Justice Kennedy. In the case of an article that gets some charge out of the counter-intuitive move of praising obscurity, though, I would like to know the author's own definition of the term, and maybe something on how we can tell deliberate obscurity from something else.
Second, and this admittedly is what struck me first, I'm surprised not to see reference to Cass Sunstein's work on judicial minimalism. Again, it's a short piece, and I appreciate that and am glad Colin wrote it, and discussed it here on Prawfs. But I think Sunstein's work on minimalism would be very useful to this project--indeed, his primary work on minimalism focuses at length on many of the same cases--and might add some clarity to the definitional question I asked above. Although in his writing on minimalism Sunstein generally favors opinions that are both narrow and shallow, he points out that these categories are capable of various combinations, and that we can (favorably) imagine some opinions that are "shallow and wide," or "deep and narrow." Others have written even more favorably about those possible categories. Donald Dripps has argued that in criminal procedure, broad but shallow opinions are often highly desirable. In a piece written back when my hair was a different color, I argued in favor of the uses of what Sunstein would, I think, call deep but narrow opinions. Both of these kinds of cases, it seems to me, can be thought of as involving different kinds of judicial "obscurity" in service of different kinds of needs. In short, I think it's probably necessary to say more about the different forms that judicial "obscurity" can take, and the occasions for which they are more or less well-suited.
I suppose there's a third point that relates to the questions I asked at the end of my first point. Sometimes obscurity is necessary, but not for the public. Sometimes it's necessary to cobble together a majority, or a large majority in those cases in which something more than a plurality or bare majority is thought to be important. So before praising Justice Kennedy (or anyone else) for obscurity, we would have to consider whether that obscurity was part of a longer-term project or a concern for the public, or whether it was just a means of smoothing over differences on the Court itself.
Again, notwithstanding or perhaps because of these questions, thanks to Colin for posting on his article.
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Hi, Paul. Colin can speak for himself, of course, but I did not take the point of his piece to be similar to what Sunstein is talking about with judicial minimalism. In fact, I took the piece to make something of an opposed point.
The point of Sunstein's judicial minimalism is, as you say in the post, to achieve consensus or agreement in the face of various institutional and theoretical limits. Factually narrow and theoretically shallow decisions are valuable as a second-best method to achieve that consensus. But the point in minimalism is not to be obscure or to dissemble. It is to be forthright that disagreements are more likely to be resolved by exercising parsimonious virtues.
I take Colin's point in the piece (and in his comment replying to me in the previous post) to be quite different. The basic reason to exercise the virtue of obscurity is precisely to resolve (or to start resolving) those big-ticket social questions where the Court, or some members of it, believe that big-picture injustices of various sorts (the sort that are characterized by deep principles) have been going on. Obscurity is not a method to achieve consensus by going small. Its aim is not to achieve consensus at all. Rather, its aim is to make it less clear what the grounds for a deep (and possibly also a wide) decision truly are. That obscurity will not gain it adherents who see through it, but it isn't really meant to do that. In fact, it seems to me that, in light of Colin's comment in the previous post (which is not part of the piece itself, of course), obscure decisions are meant to resolve cases in ways that align with deep theoretical commitments--"the anti-subordination principle, or the anti-animus principle." Obscurity, Colin said, is a rhetorical strategy to reach a deep decision without actually saying so in the opinion.
But I hope others will chime in, especially Colin.
Posted by: Marc DeGirolami | Oct 14, 2013 9:36:30 AM
Just to be clear, Marc, I'm not suggesting that Sunstein and Starger have the same goals; just that Sunstein's project, and especially what others have done with it, seems useful to Starger's and might help resolve some of the definitional and other questions that the use of a general word like "obscurity" raises.
Posted by: Paul Horwitz | Oct 14, 2013 9:53:46 AM
Hi Paul and Marc -- I just posted some more thoughts on the main page. And I wish I had read Marc's comment here before I did! I very much like his idea of obscurity as a way to reach a deep decision without saying so. I think that goes to distinguishing "virtuous" from "non-virtuous" obscurity -- at least in my book and by my own subjective lights. My post tries to deal with the more objective/neutral task of describing what obscurity is rather than examining the normative questions that Marc raised in his original comments to my original post. Make sense?
Posted by: Colin Starger | Oct 14, 2013 1:50:53 PM