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Thursday, October 10, 2013

The Virtue of Obscurity

When discussing writing with my 1L students, I inevitably advise them to make their arguments clear and succinct. Yet I've just posted a short essay to SSRN that praises the virtue of obscurity in Supreme Court opinion writing. Should this contradiction make my students mad?

I hope not. My argument for obscurity -- part of a Villa Nova Law Review symposium on United States v. Windsor -- focuses on situations, like that in DOMA, where the Court confronts ugly social realities that have become codified in unpleasant laws or distasteful precedents. I liken these situations to speaking with a homophobic relative at a series of family dinners. They are inherently awkward and sometimes less-than-direct words are the best way to move such conversations in a productive direction. Hence obscurity becomes long-term rhetorical strategy. In my view, Justice Kennedy’s "non-specific handwaving" in Windsor (to quote Justice Scalia) is a justified use of this strategy.

Could similar concerns ever warrant obscurity in student writing? I haven't thought of  a good example but perhaps Prawfs Peeps can come up with one. Or perhaps you disagree that obscurity could ever be virtuous -- in Windsor or elsewhere. Unclear comments welcome.


Posted by Colin Starger on October 10, 2013 at 04:57 PM | Permalink


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How much of “obscurity” is really only speaking to your audience? For example, with ugly social realities, the audience of the opinion is people who do not want to face the ugly truth about society. If so, the primary audience of student writing is likely the professors, who I would presume, like arguments stated directly.

Posted by: lawtalkinguy | Oct 11, 2013 5:53:55 PM

Thanks Marc. I think your first set of comments/questions effectively lays out the subjectivity inherent in making moral judgments about what constitutes an "ugly social reality." And your abortion example brings the point home. Of course, I copped to the subjective nature of my judgment -- at least with respect to LGBTQ rights -- in my piece. That's not to say that my admission gets me out of the problem you pose; I'm just saying that I agree it is a problem.

However, I do think there is a potentially principled way out of the bind described by your question "When does one know when one confronts that rare case where the virtues of obscurity should be exercised?" The potential way out involves the anti-subordination principle or anti-animus principle. This is, of course, the principle of Moreno that I think was properly invoked by Kennedy in Romer and Windsor. When a law or precedent operates to subordinate a minority group or is motivated by a desire to harm them, it should run the risk of being struck down on EP grounds -- though not necessarily under "rational basis" or "suspect classification."

Would this answer you abortion or affirmative action hypotheticals. Perhaps. One could argue that abortion-permitting laws subordinate the unborn or display animus towards them, but I think that is a weak argument. One could also argue that affirmative action laws are hostile to white people, but again I find those arguments weak. What do you think?

Let's move to your question about Justices agreeing on the big picture policy but disagreeing on whether to exercise the virtues of obscurity. Once again, I don't think a have a solid "answer" here. That's in part because I don't see obscurity as a conscious strategy so much as an occasional rhetorical necessity. The rhetorical imperative occurs when the Court has a recognized "test" that, if followed, would not reach the big picture result that everyone agrees on. Justices then could either agree to abandon the test, create a new exception, or finesse the whole test with polite obscurity. What other precedent exists that may or may not be helpful would inform which choice to make. Unfortunately, I know this boils down to another thoroughly unsatisfying: "It Depends." But that's what I got!

Hope this is responsive and thanks for the thoughtful questions.

Posted by: Colin Starger | Oct 11, 2013 5:41:42 PM

Sorry, Colin, I had an additional question that came on after I hit post. It might be possible that all of the justices were in total agreement about what you call the "big picture." But even in that case, they would need something other than that agreement to know when to be obscure. In other words, they might agree on policy matters, but disagree about whether the specific issue under consideration was one in which to exercise the virtues of obscurity. How would one resolve that disagreement assuming they were one on the big picture?

Posted by: Marc DeGirolami | Oct 11, 2013 5:12:54 PM

Would the virtues of obscurity justify (or might they justify), say, an opinion by Justice Kennedy greatly limiting the right to abortion, even if the basis for that limitation was totally unclear and the legal reasoning supporting that limitation was unconvincing in light of existing law? Somebody, after all, might describe the legal regulation of abortion as one of those rare occasions "where the Court confronts ugly social realities that have become codified in unpleasant laws or distasteful precedents." Indeed, perhaps Justice Kennedy himself might describe it in this fashion. Perhaps he felt just that way in Gonzales v. Carhart? Or would the virtues of obscurity justify an opinion by Justice Kennedy greatly curtailing the use of affirmative action in institutions of higher learning, notwithstanding what Grutter says, for the same sorts of "ugly social reality" reasons? Perhaps Justice Kennedy might also describe affirmative action as one of those rare but "ugly social realities that have been codified in unpleasant laws or distasteful precedents."

I guess the answers to these questions might depend on the Justice's (any Justice's) capacity to discern what is the "big picture" social reality underlying the particular legal conflict. But surely Justices are going to disagree about that big picture social reality. When that happens, are they then warranted in making use of obscure language? I think I understand from the paper that you believe that the sorts of cases in which the virtues of obscurity should be exercised are rare. But how does one know when one confronts such a case?

Posted by: Marc DeGirolami | Oct 11, 2013 4:20:29 PM

Good points Joe. Perhaps I was too kind to Scalia. Although there is textual support for prohibiting race discrimination based on race in the 15th amendment, that only concerns voting. No such restriction exists for EP as you point out. And I agree that obscurity is not only a Kennedy thing. And obscurity isn't always virtuous either!

Posted by: Colin Starger | Oct 11, 2013 2:28:53 PM

The article is interesting. It notes at one point that:

"Of course, Scalia would likely reject the miscegenation analogy because prohibitions against race-based discriminations find textual support in the Constitution."

Where would this be? The 14A doesn't provide "textual" support to limiting the Equal Protection Clause to race. It's an originalist argument, is it not? Even there, even the Slaughterhouse Cases doesn't deny the amendment goes beyond protecting against racial discrimination. It says that the main motivation was clearly to protect newly freed slaves, but others are protected as well.

The Roberts Court repeatedly uses what are sometimes called "minimalist" opinions that in some fashion "obscures" -- the case by case method, especially when opinions are compromises to get the votes of median justices like Breyer, repeatedly doesn't provide crystal clear lines. Even Scalia has to do this from time to time -- what is the standard of review in D.C. v. Heller? The opinions repeatedly are narrowly decided, which upsets Scalia and Thomas now and then, but it isn't just a "Kennedy" thing.

Various critics of Windsor doesn't just want it to be more activist (decide the question of same sex marriage writ large, when the Court correctly addressed a specific problem), but they provide pretty slipshod analysis of what it says. The opinion provides rational basis with bite scrutiny that wasn't just invented on the spot (the article cites Moreno as an example here). It is clearly an equal protection case, but since it is the federal government, it uses the Due Process Clause -- the equal protection component. It isn't really a substantive due process case.

Posted by: Joe | Oct 11, 2013 11:42:59 AM

Hi Steve -- Thanks for the link. Helpful indeed. Perhaps I should retitle my piece "The Virtue of Obscurity and the Enduring Value of Preemption Checking Your Essay Titles"? My bad. Though that ship has sailed, I take some comfort in knowing that our intuitions here are simpatico. Perfect clarity sometimes exposes more about the Court than we all might want to see. And I suspect the same rhetorical considerations apply outside Court discourse too...

Posted by: Colin Starger | Oct 10, 2013 10:42:20 PM

Whoops -- the link didn't work: http://www.virginialawreview.org/sites/virginialawreview.org/files/vladeck.pdf

Posted by: Steve Vladeck | Oct 10, 2013 5:35:08 PM

Colin -- This is a neat piece, and a great idea. In case it's helpful, I've written about a similar theme in the context of the Supreme Court's "original habeas" jurisprudence (available here).

Posted by: Steve Vladeck | Oct 10, 2013 5:34:49 PM

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