Op-Ed on "Calling Judicial Bullsh*t"

I wrote an op-ed for the Los Angeles Daily Journal that they titled "Calling Judicial Bullsh*t." It's behind a paywall, but I was given permission to reprint it here (it's right after the jump). Since it largely overlaps with my two posts on the subject on Prawfs, I'll turn off comments to this post.

When I was a federal judicial clerk, I was struck by the majesty of the courtrooms I entered. Dressed in exotic garb, judges preside physically and hierarchically high above the crowd. They are seated so royally in part to hide their fallibility and ordinariness. The theater of the courtroom doesn’t lie about judging but it creates an impression that may or may not reflect the truth.

Similarly, judges sometimes write with limited regard for the truth. Philosopher Harry Frankfurt used the term “bullshit” to describe statements unconcerned or insufficiently concerned with the truth. The bullshitter’s speech “is grounded neither in a belief that it is true nor, as a lie must be, in a belief that it is not true. It is just this lack of connection to a concern with truth — this indifference to how things really are” that Frankfurt takes to be the “essence of bullshit.”

In Planned Parenthood v. Casey, for example, a joint opinion of the U.S. Supreme Court reaffirmed the fundamental constitutional right to abortion stating: “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.”

On close reading, this 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.” 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 deep life questions, but they could have stated that straightforwardly.

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 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 that Frankfurt famously characterized bullshit. The quoted passage references lofty ideas without wrestling in any careful way with those ideas.

Consider too this famous passage from the Supreme Court’s decision in Washington v. Glucksberg which declined to find a constitutional right to physician-assisted suicide: “[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”

This test of fundamental rights, if taken seriously, is absurdly overdemanding. As important as our fundamental right to use contraceptives is, for example, one cannot believe that liberty and justice would not exist without it. Requiring that liberty and justice be incapable of existing to anoint something a fundamental right sets the bar preposterously high. Rather than admitting that the court has no good theory for identifying fundamental rights, the court opts instead for the bullshit approach, laying out a path to declaring a fundamental right that is so implausible that it’s hard to believe the authors of the passage cared about its truth. And the bullshit may affect how justices vote. Justice Roberts, for example, cited the lofty standard in Glucksberg when he dissented from the view that same-sex marriage is constitutionally protected.

How tragic that justices would get a failing grade in philosophy in two 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 craft their prose, these cases are so important and closely-scrutinized that the failure to make clear, precise statements might have been exactly what was intended.

In a recent law review article, I argue that, among many reasons, judges 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.

Some of these may actually be good reasons to bullshit. Bullshit can build consensus, allowing judges that would otherwise disagree to converge on language with multiple interpretations. Bullshit can also bolster confidence in judicial decisions. We sometimes mistake hard-to-understand prose for deep and meaningful prose. The boost in confidence may be illusory but perhaps some illusions are valuable nonetheless.

At the same time, bullshit lacks transparency, and we should avoid it absent good reason. The passages above are quoted in numerous court opinions and law review articles. Rather than recognizing bullshit for what it is, most take these passages to have concrete meaning with genuine legal implications. Indeed, if judges believe these passages have legal implications, then in fact they do. But given bullshit’s lack of transparency, lawyers, scholars, and judges should be on the lookout for it to see what may be hiding behind it.

Adam Kolber is a professor at Brooklyn Law School. This essay was adapted from his Arizona State Law Journal Article, “Supreme Judicial Bullshit,” vol. 50, p.141-77 (2018).