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Tuesday, June 30, 2015

The Link between Writing Style and Elite Consensus: Obergefell v. Brown

In his typically thoughtful post on Justice Kennedy's prose in Obergefell, Paul offers the following tongue-in-cheek advice to the Justices' clerks:

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!"

Paul's point is that simplicity beats attempts at grandeur in prose when marking grand occasions, because grand words generally, if not inevitably, fail to capture the gravity of the moment.

Paul is surely correct, but I think that he underestimates the difficulty of achieving a simple style in the face of four dissenting votes. Warren could write a plain and dignified opinion because he had no need to respond to, or distract from, angry dissents with hand-waving citations to Confucius and Cicero. It is easier to achieve plain, stately prose when your colleagues are not spewing invective from the sidelines (Scalia) or offering dozens of pages of legalistic reasons crying out for response (Roberts). To offer plain, abstract statements and nothing more in the face of such opposition would seem insolent at worst and ham-handed at best.

Unanimity, not writing style, was Warren's great achievement. Warren struggled to get the votes of Stanley Reed, Fred Vinson, and Tom Clark, the Court's Southerners, precisely because he knew that the rhetorical power of the opinion hinged on its being the voice of a united Court and united national elites, North and South. In our polarized times, Kennedy did not have that option of achieving such unanimity. Our elites are divided over same-sex marriage, whereas the elites of the 1950s were solidly against Jim Crow in public schools. In the face of dissenting colleagues reflecting a dissenting public, Kennedy had to offer more than a simple manifesto of Roman simplicity. That the result is less rhetorically satisfactory and nationally unifying than Brown says more about the fractured times in which we live than about Kennedy's prowess as a writer.

Posted by Rick Hills on June 30, 2015 at 11:27 AM | Permalink


If he was worried about the dissents wouldn't a legally impeccable opinion in the conventional style been stronger than an unconventional appeal to the reader's heartstrings? If not Roe v Wade, then how about Amchem v Windsor?

Posted by: DualAppointment | Jul 1, 2015 1:41:35 AM

Maybe Justice Kennedy normally does not respond to dissent, but he did in Romer v. Evans (note his discussion of Davis v. Beason at 634), and I would expect that dissents as detailed and as passionate as Roberts' and Scalia's would make a guy more anxious about bolstering his opinion.

But I wanted to make a more general point: The dissents here reflect more general elite dissensus that makes a stately and apodeictic style a bit harder to pull off. If one believes that one's audience will generally already be inclined to agree with one's general pronouncements, then one will stick with general pronouncements. if one believes that one is walking into a hornet's nest, then one may prepare a defensive posture that is less rhetorically effective.

Romer actually might be a case in point. It is a fairly short opinion and, as Kennedy's opinions go, rhetorically much closer to Brown than to Kennedy's Obergefell opinion in its simplicity and lack of high-flown rhetoric. I hypothesize that the mean-spiritedness of Amendment 2 and the general sense among elites that such laws constituted a form of gay-bashing might have made it easy for Kennedy to write in simple generalities and leave out Cicero and Confucius.

But I could easily be wrong: Maybe Kennedy is just a bad writer, full stop.

Posted by: Rick Hills | Jun 30, 2015 4:45:00 PM

Rick, I don't find this persuasive. As Richard Re points out, Justice Kennedy normally does not respond to dissents. Given that he does not write with dissents in mind, and he does not respond to them, I don't think it works to argue that his writing in Obergefell is explained by the challenges of writing "in the face of four dissenting votes."

Posted by: Orin Kerr | Jun 30, 2015 4:24:48 PM

Make that Black as the third Southerner, with my apologies. Of course, Father Time did the persuading with Vinson.

Posted by: Rick Hills | Jun 30, 2015 1:28:12 PM

It certainly was a struggle to get Fred Vinson's vote, from the grave. But I wouldn't put anything past a seasoned politician like Earl Warren.

Posted by: Mark Tushnet | Jun 30, 2015 1:08:42 PM

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