Friday, March 04, 2016
Kende on Berger on The Rhetoric of Constitutional Absolutism
At Jotwell, Mark Kende has a "jot" about Eric Berger's recent article, The Rhetoric of Constitutional Absolutism. I very much enjoyed Berger's comprehensive article, which describes a tendency toward rhetorical confidence and certainty in Supreme Court opinions, even (or especially) in divided opinions, in which the opinion "conten[ds] that a particular constitutional statement is either absolutely true or false" and confidently "insist[s] that a case has only one possible correct constitutional answer" and "often depict[s] a case as easier than it is." Berger offers several pretty convincing accounts--"strategic, institutional, and psychological"--of why this rhetoric happens, although he might have said more about the role of law clerks and the "chambers style" of an institution that relies heavily on them for opinion-writing. It is not surprising that he concludes that it is a problematic style, but he commendably totes up the benefits as well as the costs of this rhetoric. Kende offers a clear, quick, and sensitive description of Berger's article and concludes by saying that "Berger has given us a superb article that suggests that there would be much value in the Supreme Court writing less absolutist and more nuanced candid opinions."
As Kende notes, there is an interesting existing literature relevant to Berger's article (which Berger certainly cites). I recommend especially Emily Calhoun's book Losing Twice: Harms of Indifference on the Supreme Court, and, before that, Robert Burt's The Constitution in Conflict. Calhoun's book also has a wonderful set of bibliographic essays on the topic.
Eric, what an interesting looking article--coming from studying philosophy before law school I was always taken aback by the certainty of lawyers, law professors, and judges. It is mostly just posturing I think, and there are very severe costs. Thank you for enumerating them.
Posted by: Steve | Mar 12, 2016 11:22:25 AM