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Monday, September 18, 2023

Biden v. Nebraska and Strategic Ambiguity in Judicial Rhetoric

Clarity is often thought to be the cardinal virtue of judicial writing, but judges—like all authors—sometimes make use of strategic ambiguity, too. A fascinating example appeared near the end of the Supreme Court’s most recent term. Appropriately enough, the occasion was an exchange on the propriety of disparaging rhetoric.  

Start with this passage, which appears near the end of the Chief Justice’s opinion for the Court in Biden v. Nebraska:

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. …. Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

The Chief was expressly concerned with “some recent opinions,” but he chose to make this point specifically in Nebraska. Why? The answer may partly have to do with the fact that Justice Kagan authored the dissent in that case. Like the Chief himself, Kagan is an institutionalist. And she had recently heaped collegial praise on the Chief at the Friendly Medal ceremony (see here). The Chief might therefore have expected Kagan to be especially open to a call for mutual respect.

So, how did Kagan react? Here is the key passage:

From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage[ ]” those who disagree. Ante, at 26. The majority is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante, at 25. And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” Supra, at 1. It would have been “disturbing,” and indeed damaging, if they had not. Ante, at 25. The same is true in our own day.

My main interest is in the portion of this passage that I have underlined. What is happening in those sentences?

My initial read was that Kagan was being somewhat conciliatory, consistent with her remarks at the Friendly Medal ceremony. While obviously continuing to press a serious disagreement, she nonetheless wanted to acknowledge the Chief’s perspective (“The majority is right …”) while exhibiting a degree of mutual respect. On this reading, Kagan wanted to signal “disagreement,” not “disparagement.” I know that I am not alone in having come away with that impression.

However, I have become aware of another, almost diametrically opposed reading. Instead of being conciliatory, Kagan could be read as ridiculing the Chief, sarcastically mocking his schoolmarmish attempt to police her rhetoric. The fact that the terms “disparage” and “reasonable minds” are placed in quotation marks arguably supports this reading. (To my own surprise, I couldn’t help but put these words in air quotes when reading this passage aloud.)

I’ve now asked more than a few people about this passage. These folks include law students, professors, and practitioners. My casual polling suggests a roughly even split across all these groups, with some views in between. 

What can we learn from this? One possibility is cautionary. Writing is hard and easily misunderstood. Tone is especially elusive when it comes to the printed word, and readers are apt to ascribe whatever intonation they expect. Here, Kagan may have intended to convey either the first reading or the second one (or something else). But, if so, that effort proved less than perfectly successful.

Another possibility, however, is more interesting. Could the genius of this passage lie precisely in the fact that it is subject to such divergent readings? 

Imagine a hypothetical justice in Kagan’s position here. The imagined dissenter would have a strong interest in placating the Chief, to say nothing of other members of the majority coalition. Further, the dissenter might want to preserve public respect for the Court, which is both an important institution and the main source of the dissenter’s own prestige. At the same time, the dissenter would not be eager to bow to a call for civility. The dissenter might to want to stoke outrage regarding the majority, avoid diluting her own opinion’s rhetoric, and promote her personal reputation among the Court’s critics. 

Ambiguity allows the dissenter to accomplish all these goals. People like me and, perhaps, the Chief read the passage as conciliatory because we expected conciliation. By contrast, others read it as sarcastic because they expected sarcasm. Readers may not even notice the ambiguity. And, when the ambiguity remains invisible, it operates with maximal effect. These reader-specific responses allow a strategic writer to have her cake and eat it, too.

Cross-posted from Re's Judicata.

Posted by Richard M. Re on September 18, 2023 at 10:00 AM | Permalink


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We can know through both Faith and Reason, rightly ordered to Love, that refusing to join a “gradualist “ opinion when it comes to Due Process, by affirming the essence of being in essence, a beloved son or daughter of a human person, from the moment of conception, be it in regards to slavery, abortion, or the reordering of human persons according to sexual desire or inclination, which objectify the human person, and deny the inherent Dignity of the human person as a beloved son or daughter, would, in essence, be an example of how dissent against atheistic materialism, whose end goal is the objectification of beloved human persons, would not and cannot disparage because all beloved sons and daughters of human persons, possess equal human Dignity, and are thus equal before The Law.

Posted by: N.D. | Sep 20, 2023 10:41:43 AM

When it comes to that which is non negotiable, such as “ due process of Law”, if the non negotiable becomes negotiable, then dissent cannot disparage, however, in regards to that element of The Law that is negotiable, reasonable minds can dissent in regards to that which is negotiable as long as they are being reasonable and thus are in keeping with The Spirit Of The Law.

Posted by: N.D. | Sep 20, 2023 9:57:55 AM

I think she was truly trying to put forth the olive branch but since she has a reputation as snarky some people will think she has at least a double meaning.

I think that's okay for her purposes and her phrasing was well chosen.

Posted by: Joe | Sep 19, 2023 12:00:16 PM

I thought the more interesting ambiguity is whether the Chief Justice wants to be taken literally when he says the dissent doesn't disparage the majority; whether he instead wants readers to understand he thinks the dissent does disparage the majority but that he is pretending it doesn't; whether perhaps, as you suggest of the dissent, he wants one audience to take him literally and another to understand him to mean the opposite of what he literally says. Likewise, is he implying that the dissent does not have the "disturbing feature" of other unnamed "recent opinions," or that it does, and to the extent he literally implies that it does not, does he nevertheless intend some readers to understand he thinks it does?

Posted by: Asher Steinberg | Sep 19, 2023 11:16:31 AM

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