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Monday, October 14, 2013

Clarifying Obscurity: Minimalism, Novelty, and Polite Conversation Change

After my entry last week on doctrinal obscurity, Paul posted a pithy response asking probing questions and raising important points. Right off the bat, I'd like to thank Paul for his generous and thoughtful engagement with my musings. Thanks! It's really fun to be able to hang around this month on Prawfs and participate in the community dialog. In today's post then, I'll try respond to Paul and clarify my claims about obscurity and its relationship to the rich scholarship on minimalism. 

Before I jump into the substance, let me first elaborate the context for my essay and then make a quick confession.

The relevant context here is Justice Scalia's dissent in Windsor. It bothered me. His accusation that the majority was engaged in "non-specific handwaving" had force but somehow seemed wrong to me. So I decided to map out the doctrinal origins of Justice Kennedy's majority opinion. Based on this exercise, I found that Windsor "fit" with the relevant prior doctrine. To continue using Dworkin's terms,  I regarded Windsor as next chapter in our constitutional chain novel about due process and equal protection that had integrity. Yet Kennedy did not use an accepted SDP or EP test to reach his conclusion. To resolve this tension and rebutt Scalia, I hatched upon the virtue of obscurity.

And now the confession. Before Paul's post, I had not read Cass Sunstein on minimalism. Mea culpa. I entered law school after  "Leaving Things Undecided" appeared in the Harvard Law Review and only entered the academy as a professor three years ago. Though I've read a lot of Cass since then, it seems there is a whole lot more Cass out there. That guy is an animal! In any event, Paul inspired me to book up and I am grateful for the experience of working through this obviously seminal article. Without question, some of my intuitions about obscurity have been better developed in prior work on minimalism. Yet I don't think the overlap is complete and believe I'm making some different claims. Let's look at them now.

Paul's first question essentially asked for a definition of obscurity. Upon reflection, I think I really understand obscurity to cover three related concepts -- minimalism, novelty, and polite conversation change -- that all answer the charge of "non-specific handwaving." 

Obviously, the first idea here intersects directly with Sunstein. After booking up, I very much appreciate his understanding of minimalist judges as those "who seek to avoid broad rules and abstract theories" and instead focus on what is necessary to decide particular cases. Though minimalists "emphatically believe in reason giving, [] they do not like to work deductively; they do not see outcomes as reflecting rules or theories laid down in advance." This aptly anticipates Kennedy in Windsor, just as it accurately described Kennedy in Romer. Though his opinion was both "shallow" and "narrow," it was hardly without reasons or precedent. Windsor was obscure in that it was under-theorized, but, as Sunstein tells us, that is not always a bad thing.

The second dimension I see in obscurity is novelty. A legal concept may strike audiences as obscure merely because they have never heard of the concept before. In my essay, I suggest that Skinner v. Oklahoma's introduction into Supreme Court discourse of the notion of "strict scutiny" in legislative classifications  likely came off obscure in 1942 precisely because it was so new. Although we now have strong analytic associations with the phrase, Justice Douglas' very decision to turn to equal protection was unusual; his nascent "strict scrutiny" test had very little content. Obscurity is thus a relative concept. What is obscure now may be plain as day later. I thus suggest that the anti-animus and "equal dignity" principles advanced by Kennedy may be regarded by future generations as the startlingly obvious doctrinal bottom-lines of Windsor.

The final dimension to my notion of obscurity is what I call "polite conversation change." Unlike the other two dimensions which we might view as "outward looking" -- having to do with how the Court engages with other constitutional actors and future generations -- this dimension is essentially "inward looking." Polite conversation change signifies a rhetorical tactic that helps move the current conversation in the Court in a productive direction. This is both a means of "smoothing over differences" (as Paul suggested) and a way to keep the credibility and dignity of the Court intact in face of embarassing precedent.

Once again, the context here is Scalia's dissent. Like in Romer and Lawrence, Scalia's Windsor dissent essentially argues for the right of the majority to be anti-gay. His position has a logic -- though its grounding in precedent has eroded after Romer and Lawrence. Should Kennedy have directly engaged this logic? In the essay, I likened this situation to talking to a homophobic relative over a series of family dinners. Key to this analogy is imagining that the rest of your family is listening and that maybe they are not all together comfortable with LGBTQ issues. I suggested that direct engagement is not always the best course in such situations. Be polite always. But try to change the direction of the conversation.

This final kind of non-confontational obscurity saves face and bides time. In Leaving Things Undecided, Sunstein clearly wished Kennedy had given more reasons in Romer and explicitly dealt with Bowers (Sunstein called the Romer opinion "subminimalist"). Of course, I agree with Sunstein that Kennedy could have distinguished Bowers as a SDP case since Romer was decided on EP grounds. At the same time, such a distinction would have been deeply unsatisfying as a rhetorical matter. Bowers legitimized some degree of state-sanctioned homophobia. There was no persuasive way around that. Bowers was like a big zit on the face of Court's gay rights jurisprudence. So I remain sympathetic with Kennedy's decision to politely ignore it. His tactic of obscurity made more sense at the time than I think Sunstein admitted.

Having laid these three dimensions out, let me wrap up by touching upon Paul's questions about how to discern deliberate from uninentional obscurity. My short answer is that it is hard to reliably identify deliberatly virtuous obscurity. (I suspect "I know it when I see it" would be an even less satisfying answer!).

Yet the "virtuous obscurity" label certainly seems to apply to the gay-rights trilogy. For me, it's hard not to see the movement from Romer to Lawrence to Windsor as anything other than a long-term project embraced by Kennedy. His minimalism in these cases nonetheless introduced us to novel lines of constitutional inquiry that may prove useful to future generations. And Kennedy executed his project in a way that did not entirely embarass the Court or any of its members. That's no small feat -- especially considering how dramatically public views on gay rights have moved in the decades since Bowers.

Could the idea of obscurity apply outside gay rights? I suspect so but have yet to think it all the way through. Certainly, Skinner and Moreno provide possible other data points to interrogate the idea. My essay touches upon these two cases, but I know further inquiry is required if I wanted to make a Truly Strong Claim. At this juncture, I'm not entirely sure that I do. In any event, thanks again to Paul for his post and for moving me to think harder about these questions. 




Posted by Colin Starger on October 14, 2013 at 01:42 PM | Permalink


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You should also check out Timothy Endicott's work on vagueness in the law, especially Law is Necessarily Vague, Legal Theory, 7 (2001), 379–385. In that article, Endicott argues that vagueness operates as a form of delegated discretion that permits the court to fill the gap that linguistic indeterminacy creates. On this view, terms like 'resaonableness' operate to allow courts the discretion to develop a set of standards that flesh out what the law means. This is not just kicking the can down the road; it's allowing decision-makers to develop pragmatic solutions to problems that arise on the ground.

Posted by: Eric Miller | Oct 16, 2013 12:52:31 PM

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