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Monday, June 29, 2015

A Hallmark of an Opinion: Justice Kennedy's Writing Style and How Much--or Little--it Matters

Although I think I disagree with him on some aspects of his post, I very much appreciate that Richard's post on Justice Kennedy's opinion in Obergefell doesn't simply line up on one side or the other of the usual "tastes great"/"less filling" debate on Kennedy as writer (or editor--I don't know how much Kennedy writes versus edits, although in the "big cases" the chambers voice is quite consistent). My sense is that Richard is positively disposed as far as the writing in Obergefell is concerned, whereas I opt for the "less filling" side. But Richard's post is mostly concerned with saying some more interesting things about the opinion and judicial opinion writing more generally. Let me try--mostly--to do the same thing here. I want to ask whether and how much it matters that Kennedy tried to write an opinion for "the people" instead of a more specialized audience. I conclude that the answer is: not much. An opinion on a deeply personal hot-button issue of this sort will attract attention regardless of how it is written, and a ruling that one favors on such an issue will receive praise regardless of how poorly written it is. Kennedy's continual striving after deep emotional affect in opinions of this kind is not only poorly accomplished, but mostly needless.    

Just to lay my cards on the table at the outset, I don't think the writing in Obergefell--especially the most-cited, most-shared writing, such as the peroration--is very good at all. Andy Koppelman, long an ardent supporter of same-sex marriage, writes of it: "All of Kennedy’s worst traits—the ponderous self-importance, the leaps of logic, the worship of state power—were on display." It is noteworthy but not surprising that Kennedy's writing is often worst precisely in those cases where it clearly matters most to him. In those cases he displays the same failing as a writer regularly enough for it to be a pathology: The deliberate and strenuous effort to achieve the grandeur that he believes fits the occasion. The double-entrendre of the word "Hallmark" in the title of the post is intended. Why do we turn to Hallmark cards on important occasions, and why are they so trite? It's not because the occasions are unimportant or meaningless. To the contrary, experiences like love, marriage, and death are inexpressibly important and moving. Therein lies the problem. Writing that manages to convey something of that sense is great but passing rare. Most of the time, the wisest approach is simplicity and even silence. Generally, when one tries to do more than that, the words used are not only inadequate, but extremely well-worn. Hence, even sincere efforts end up in triteness. I'm not sneering at Hallmark. No wonder many of us, knowing our own words fail us, turn to it on such occasions! And, given those occasions, no wonder its hackneyed phrases are such poor tokens of our feelings.

When he waxes mystical or sentimental or homiletic, Kennedy cannot help but write Hallmark card sentiments. His peroration in Obergefell is one such instance. Given what I have said about the difficulty of expressing the inexpressible, one may sympathize--up to a point. By now, however, he ought to have recognized the problems of trying to do so, so hard and so earnestly. It's like attempting to hang-glide over a huge and gorgeous cliff: the idea is romantic enough, but there's no half-measure of success--just complete success or crashing disaster. Kennedy does not succeed--and an attempt at this sort of writing, if it fails, ends up in hackneyed and clichéd prose. He seems utterly incapable on these occasions, when deep feelings and his own historical legacy are at stake, of remembering that less is more.

In a roundabout way, this critique brings me to my primary point, one that is closely related to some of what Richard writes below. Before this opinion came out, I used to joke that all of Kennedy's current and former clerks should conspire together. Each should send him a copy of the Court's opinion in Brown v. Board of Education with a suggestive little note along these lines: "I reread this recently and thought of you. What a great opinion--short and simple with little grand emotion!" Perhaps he might be persuaded, or reminded, to write such an opinion in the SSM case. For surely it was clear that Kennedy would, and did, seek to write the opinion in this case for the American public--or at least for those citizens, not necessarily lawyers, who would judge his eventual legacy and place in history. Richard emphasizes this point and writes below, "[T]he key question is whether Obergefell speaks to the people." Famously, this was also the goal of Chief Justice Warren when he wrote the opinion in Brown.  

Kennedy's peroration was indeed widely shared in what, for those of my class and political cohort, is the usual places: Facebook posts, The New York Times, Slate, and so on. But I wonder if that is especially good evidence that Kennedy's writing in Obergefell was a success. I doubt it, for two reasons.

First, consider Brown itself. Warren wrote a short, non-professional opinion in Brown with the intention that the whole opinion would be widely republished in full in newspapers, and read by millions of average Americans. And Brown does indeed matter to millions of Americans and command their loyalty and affection. But the fact is that Warren's opinion has always been more cited than quoted. And what is most likely to be quoted is not an emotionally affective sentence of the Kennedyesque sort, but a simple, dry, powerful legally oriented sentence: "We conclude that, in the field of public education, the doctrine of 'separate but equal' has no place." Warren never attempts to capture the emotional depths of the evils of slavery or segregation--sensibly enough, since it would be nearly impossible. The few sentences in the opinion concerning things like feelings of stigma suffered by children are still not of the Kennedy school of emotional "eloquence," and in any event they're not half as well remembered as the simple sentence quoted above. In Obergefell, Kennedy seeks not just to be read, as Warren did with Brown, but to be wept over, for the opinion to become a sentimental favorite and provide evidence of the writer's great sensitivity of feeling. Warren decidedly did not seek these things. But twenty years from now, I suspect that Brown will still be the better known and more fondly remembered of the two opinions. Warren made the wiser choice here.

What about all that glad and grateful sharing of the peroration? By no means do I wish to belittle the positive public reaction. (I will note, however, that in any other context, I would be quite surprised if so many of my peers would agree so readily that "no union is more profound than marriage," and in other contexts I could imagine a statement like that coming in for much criticism by the same people.) But I must discount it a little. I want to suggest here that almost any quotable sentence--good or bad, emotional or not, voicing this sentiment or some other idea altogether--that Kennedy wrote in an opinion making clear the constitutionality of same-sex marriage would be shared and praised by the same people, for the simple reason that it is a quote from an opinion upholding same-sex marriage

Consider a couple of examples from Slate, which is more or less designed to embody the mainstream of professional/managerial-class, politically liberal or "progressive" opinion. Naturally, it hailed the last paragraph of Obergefell as "one of the most beautiful passages you'll likely read in a court case." Fully in line with Kennedy's almost certain hopes, the author notes that he teared up on reading it. This past fall, Judge Richard Posner issued an opinion upholding gay marriage in Baskin v. Bogan. Unsurprisingly, it was shorn of all the ponderously voiced Hallmark sentiments that Kennedy can never resist. But Slate, while recognizing that Posner was not appealing to those kinds of sentiments and certainly did not "sound like a man aiming to have his words etched in the history books or praised by future generations," liked it just as much, if not more, calling it a "deeply moral masterpiece."

I would suggest that one conclusion one might draw from the similar reaction to these two very different opinions is that it just didn't matter that much what Kennedy wrote. The ruling--not the sentiment, and certainly not Justice Kennedy's sentimentality--was the thing. That the paragraph was shared does not mean that it was good writing--with all due respect, it clearly is not--or that it managed to express the inexpressible (it didn't), or that it voiced just the right sentiment for the occasion. (Many people who shared it do not always believe that marriage is the most profound of unions.) It was shared because people were thrilled that the Court had just upheld same-sex marriage rights. Just about any phrase, sentimental or not, fresh or clichéd, conveying the basic result would have done just as well. What Kennedy did was far more important than what he said, or even whether he was attempting to speak to the public or not. 

Of course, many people, lawyers most certainly included, don't care much one way or the other about the style, or writing competence, of a judicial opinion. I have no complaint about that. I do tend to be interested in those matters, and have been for some twenty years. In Kennedy's case, my interest is enhanced by a combination of the particular style--the strenuous reaching after grandeur--that he consistently adopts, the remarkable failure of those efforts in the hot-button cases on which he writes, the importance of those issues to me and others, the overwhelming amount of attention devoted to Kennedy and his words in legal and non-legal circles, his occasional tendency to talk about that fame in portentous terms, and the remarkable degree to which he continues making the same mistakes. For people who care about those things, it is understandable that his writing style and its shortcomings in Obergefell should draw attention. I have no problem with those who are not interested in the style of the opinion, who care only about the outcome or the quality of the reasoning; my disagreement is aroused only when what is evidently poor writing is praised as writing

I will note, however, that many critics, including supporters of the outcome reached here, have on this and other occasions criticized Kennedy for, in effect, devoting more effort to reaching grand and emotionally affective language than to achieving clarity or logic in these cases. In the post I linked to above, for example, Andy Koppelman suggests that Kennedy's opinion in Obergefell suffers from "leaps of logic." One might forgive those lapses more readily if there was a strong public need for the kind of opinion Kennedy did write. To the extent that the real outpouring of public emotion comes from the outcome and not the language, however, that allocation of his time and resources seems all the more needless. Under the circumstances, why not aim for clarity rather than depth of feeling?  


Posted by Paul Horwitz on June 29, 2015 at 03:08 PM in Paul Horwitz | Permalink


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