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Tuesday, August 25, 2015

Autonomy Rhetoric in Supreme Court Opinions

Obergefell has spawned an interesting discussion about the use and abuse of rhetoric in Supreme Court opinions. (E.g., here, here, and here.) One especially salient charge is that the Court’s opinions in Casey, Lawrence, and now Obergefell all rely on “showy profundities,” as Justice Scalia has put it. But the rhetoric at issue may simply reflect a certain kind of philosophical writing, as evidenced by a forthcoming paper by Vincent Phillip Muñoz. (By way of disclaimer, I clerked for Justice Kennedy several years ago.)

To begin at the beginning, the Court’s opinion in Planned Parenthood v. Casey famously and prominently relied on claims about “dignity and autonomy.” Here’s a key passage:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Years later, Lawrence v. Texas quoted the above, prompting Justice Scalia to ridicule it as the “famed sweet-mystery-of-life passage.” Obergefell featured a similar exchange. For instance, the Court asserted that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” In dissent, Scalia wrote that “[i]f, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” that way, “I would hide my head in a bag.” He elaborated: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

That brings me to Muñoz’s paper, “Two Conceptions of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” which is forthcoming in the American Political Science Review and well worth a read. (While the paper isn’t public yet, this post is with Muñoz’s permission.) In addition to discussing founding-era thought on religious accommodation, Muñoz explores a more modern approach to the issue grounded in “autonomy.” When describing autonomy, Muñoz draws on noted philosophers, including thinkers who refer to the search for the  “ultimate meaning of life.” And Muñoz goes on to note that the “Supreme Court articulated this conception of freedom with brilliant clarity in Planned Parenthood v. Casey.” He then quotes Casey’s “mystery of human life” sentence.

So Scalia and Muñoz have pretty different takes on the Court’s autonomy rhetoric. What to make of this? One possibility is that Scalia’s purportedly rhetorical criticisms may be dependent on his substantive views of the law. In other words, Scalia’s hostility to the “mystery of life” trope may rest on the view that philosophy isn’t the proper stuff of federal-court opinions, even when it’s done well. Another possibility is that Scalia’s rhetorical jabs might reflect his own preferred philosophical method. For instance, it seems plausible that Scalia favors a philosophical approach that’s less open to fuzzy, abstract concepts and more insistent on strict formal reasoning. In any event, it’s worth remembering that Scalia’s talent at labeling and branding doesn’t mean that his views are representative. If so thoughtful a scholar as Muñoz views Casey’s sentence as reflecting the thought of leading scholars in contemporary philosophy, then Scalia’s critical view should be taken with a grain of salt.

Posted by Richard M. Re on August 25, 2015 at 11:59 AM | Permalink


anon's point basically holds.

Anyway, I am not familiar with the cited scholar, but will grant quite willingly he is a fine scholar. I don't think some good scholar disagreeing makes Scalia wrong by itself. The substance of the argument does help.

I find the amount of concern given to what I see as rhetorical gloss in Kennedy opinions at any rate a bit silly. More so when the implication is made that he's the problem specifically. We can make fun of various other poetic language such as "dignity of states" or "ordered liberty" or whatever.

Posted by: Joe | Aug 27, 2015 12:58:25 PM

@anon: Scalia has never been an Advocate of "original intent"; only "original meaning".

Posted by: Brian | Aug 27, 2015 12:30:52 PM

Ever since reading Scalia's dissent in Obergefell, I have thought that perhaps the most satisfying element of the majority opinion is that it indirectly acknowledges Scalia's authentic right to "hide his head in a bag," bury it in the sand, or do whatever he wishes with it.

Posted by: Richard Williams | Aug 27, 2015 11:14:28 AM

The law is ultimately words on a page. Trying to divine their "original intent" is a self fulfilling prophecy. Scalia gleans from the text of the Constitution what he wants to, he just does it in different ways.

Posted by: anon | Aug 27, 2015 9:58:23 AM

The desire to engage in an act does not change the nature of an act. The question is, how can any act that does not respect the inherent personal and relational Dignity of our beloved sons and daughters, respect the inherent Dignity of the human person?

Posted by: N.D. | Aug 26, 2015 5:23:21 PM

Does Munoz say why he thinks the passage from Casey articulated the philosophy "with brilliant clarity"?

Posted by: Orin Kerr | Aug 26, 2015 3:23:36 AM

There's a higher tolerance these days for law office history than law office philosophy.

Posted by: Steve H | Aug 25, 2015 7:20:48 PM

And John Marshall could hand down the aphorism now and then.

Posted by: Howard Wasserman | Aug 25, 2015 4:29:32 PM

Isn't the more relevant question whether *lawyers* who agree with Kennedy's results also agree with his rhetoric and reasoning? It's hardly probative of validity that moral philosophers agree with him.

Posted by: Hash | Aug 25, 2015 1:24:06 PM

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