Introduction to Judicial Bullshit

My article, Supreme Judicial Bullshit, was just published by the Arizona State Law Journal (vol.50, p.141). Here is the adapted introduction (footnotes omitted):

According to one commentator, unlike certain political discourse, “law is the very opposite of bullshit.” To her, law is “a highly systematized structure of meaning used to evaluate the merit and relevance of facts and arguments. In that same capacity, it’s also a way of regulating which statements are valid understandings of reality or legal text and which are beyond the pale.” Yet, as I will suggest, there is no shortage of judicial bullshit.

You might think that judges, especially those with life tenure, could dispense with bullshit. There are many reasons, however, why judges bullshit, some of them quite strategic. It’s not easy for judges to resolve contentious issues that have flummoxed lawyers and ethicists for decades. Bullshit can help judges appear to address profound questions without actually staking out provocative positions. Indeed, judicial bullshit may sometimes provide the best path forward.

Judicial bullshit is often easiest to spot when judges wax philosophical; hence many of the clearest exemplars come from bioethics cases. Consider, for example, these two sentences from the U.S. Supreme Court’s joint opinion in Planned Parenthood v. Casey, which reaffirmed the fundamental constitutional right to abortion: “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.” If you teach constitutional law or health law, you’ve probably read this passage many times. But have you ever stopped to figure out what it means? It seems to express a lofty commitment to personal liberty, indirectly associating abortion rights with the most fundamental aspects of our humanity.

On closer reading, however, the passage makes little sense. It claims that the most important aspect of liberty is the “right to define [a] concept.” But a right to define a concept, while a kind of liberty, is certainly not “at the heart of liberty.” Governments rarely seek to limit people’s rights to define concepts. Inside your own head, you can define concepts however you’d like. Liberty is more centrally concerned not with our freedom to define concepts but with the sorts of actions we are permitted to take without interference from others. If Casey were merely about rights to define concepts, it would be of greater interest to metaphysicians than actual physicians.

And what does it mean to have a right to define one’s own concept of the mystery of human life? People are far more likely to debate the mystery of human life than the concept of the mystery of human life. Perhaps the Justices meant that we should be free to reach our own conclusions about the mysteries of life, but it would have been much more straightforward just to say that. And again, the passage concerns liberties associated with freedom of thought rather than the liberties of bodily autonomy that are at the heart of the abortion debate.

Lastly, it’s not clear precisely what “these matters” refers to in the second sentence. Presumably, these matters are existence, meaning, and the universe and not rights to define concepts of these things. Still, beliefs about existence, meaning, and the universe aren’t the sorts of things typically thought to “define” attributes of personhood. Attributes of personhood are usually qualities that entitle people to basic rights. For example, perhaps abilities to feel pain, be self-aware, or form complex desires constitute attributes of personhood. But how can beliefs about existence, meaning, or the universe (or beliefs about rights to define such concepts) constitute attributes of personhood? Surely humans with no beliefs about these things still have rights to life.

“So what,” you might say, “if the Justices would fail their Philosophy 101 exams?” Maybe the quoted passage isn’t meant to be picked apart for putative philosophical content; maybe it’s only meant to set the ambience for the joint opinion. But that’s precisely my point. The joint opinion is cloaked in philosophical language, but the authors often seem unconcerned with the truth or falsity of their statements in just the way, as we will see, philosopher Harry Frankfurt famously characterized bullshit. The joint opinion references lofty ideas without wrestling in any careful way with those ideas.

How tragic, it may seem, that the authors should get a failing grade in philosophy in one of the most philosophically rich and important cases in the nation’s history. But while it’s possible the joint opinion authors simply lacked the acumen to evaluate what they wrote or failed to carefully compose or edit their prose, the case is so important and closely-scrutinized that the failure to make clear, precise statements might have been exactly what was intended.

I will argue that, among many potentially overlapping reasons, judges sometimes resort to bullshit to: keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, seem as though their hands are tied, and seem principled rather than strategic. I make no strong claims about whether or when courts ought to bullshit, but there are probably appropriate occasions.

At the same time, bullshit lacks transparency, and we should avoid it absent good reason. The “mystery passage” above is quoted in full in hundreds of law review articles and many court opinions, including famous cases such as Lawrence v. Texas, Washington v. Glucksberg, and People v. Kevorkian. Rather than recognizing bullshit for what it is, the vast majority of these scholarly and judicial sources seem to endorse its content. They take the passage to actually mean something with genuine legal implications. Indeed, if judges believe the passage has legal implications, then in fact it probably does. But given the lack of transparency underlying bullshit, judges and scholars should pay keen attention to its use to see what may be hiding in the background.

In Part I, I discuss Frankfurt’s understanding of bullshit and illustrate possible instances of judicial bullshit in a wide range of bioethics cases, especially those decided by the U.S. Supreme Court. In Part II, I examine several potential instances of bullshit in the joint opinion in Planned Parenthood v. Casey to show the role bullshit can play more broadly in a single opinion. Casey concerns the particularly controversial issue of abortion and arguably uses bullshit to deflect attention from the thorny philosophical questions at its core. I don’t take a position as to whether the joint opinion should be applauded or condemned for its apparent reliance on bullshit, but I do highlight ways in which judicial bullshit reduces transparency in ways that may be troublesome.

The composition of the Supreme Court may change dramatically in the coming years, and many of the Court’s apparently-settled constitutional cases will reopen for debate in ways that few scholars predicted. Now is a particularly timely opportunity to reexamine the philosophical arguments underpinning those and other decisions to see where bullshit must be replaced by careful argumentation and where bullshit might be the best we can hope for.