The Falsifiable Justice Kennedy

The Green Bag’s most recent Micro-Symposium is worth checking out.

My favorite piece is Jonathan Mermin’s “On the Importance of Headings and Subheadings in Judicial Opinions.” It exhibits the mixture of whimsy, substance, and law-nerdiness characteristic of great Green Bag writing.

Mermin explains why Richard Posner’s inclusion of “superfluous headings and subheadings” in his basket of opinion-writing deplorables stopped making sense to Mermin once he “started thinking about how lawyers read judicial opinions.” Practicing lawyers typically look only for very particular things in any given opinion; headings and subheadings help them find what they’re looking for more efficiently. “A judicial opinion without headings is like a newspaper without headlines: you can still find what you’re looking but you spend more time searching for it.”

There’s more, including an intriguing proposal by Mermin for courts to write single-issue opinions. Read the whole thing.

The most troubling contribution of the bunch is “Faux Originalism” by Richard Posner and Eric Segall. It is a response to “Originalism’s Bite,” by William Baude and Stephen Sachs–another of the micro-symposium contributions (though one with its own stand-alone SSRN link). The Posner/Segall piece is troubling because it forces us to ask what to make of false statements of law by Supreme Court Justices in opinions for the Court.

The false statement in question here is Justice Kennedy’s statement in Obergefell v. Hodges that “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment … entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

Baude and Sachs do not say whether this statement is true or false, but they do say it is falsifiable: “This passage makes a claim about the law in 1868; to assert it is to make a constitutional, originalist case for Obergefell. To deny it is also to make an originalist case, this time against Obergefell—and to recognize the falsifiability of originalist claims.”

Posner and Segall suggest that Kennedy’s statement is false: “In fact neither the drafters nor ratifiers of the 14th Amendment said anything about entrusting the definition or redefinition of constitutionally protected liberty to future generations who might learn the meaning of liberty; they didn’t say ‘we don’t know what liberty means but what the heck, our descendants may.’”

Posner and Segall go on to say that “Justice Kennedy meant that the Fourteenth Amendment authorized future generations to decide the constitutional contours of liberty under the standards and conditions prevailing in those generations—in other words that the Fourteenth Amendment had decreed a non-originalist method of deciding the scope, the application—the very meaning—of the amendment.” Yet Kennedy did so by making a claim about what the generation that wrote and ratified the Fourteenth Amendment actually did. That is what Baude and Sachs said Justice Kennedy said, and they are right about that.

To make a claim that the original law of the Fourteenth Amendment authorized non-originalist interpretation of the Fourteenth Amendment is to make a claim about the original law of the Fourteenth Amendment. Now suppose, as Posner and Segall apparently do, that Justice Kennedy’s statement is false. Isn’t that a problem regardless of whether one is an originalist?

Reader Discussion

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on December 02, 2016 at 09:12:21 am

Kennedy and opinions like Obergefell are the termites gnawing at the foundations of SCOTUS which will eventually--long after we're gone--result in a SCOTUS 'Trump' not just calling but being widely heard calling "The Emperor Has No Clothes". But by then their will be no institutional structure left for saving and the nakedness of SCOTUS will be part of the history of a Founder's Design that was--once upon a time.

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Derek Simmons
on December 02, 2016 at 09:32:24 am

I appreciate this news and its source. I often dub Kennedy the self-appointed “lord of dignity and equality,” IMO.

Dignity and equality are inalienable newborn-human qualities that the child must be coached to recognize, cultivate, and protect. It is tragic how severely the USA neglects this person-coaching. Government can only strive to maintain each newborn’s freedom from obstruction, whether original or progressive, in discovering the liberty to intentionally perfect his or her person during his or her lifetime.

By now, supreme opinion should have evolved to public-integrity as private-liberty-with-civic-morality. A civic people iteratively collaborate for broadly-defined-civic-safety-and-security; thereby, each person may privately pursue his or her real-no-harm, personal interests. The civic culture uses the literal preamble to the constitution for the USA and discovers morality from the facts of reality rather than from majority opinion. A people offer civic justice through fidelity to the facts, self, immediate family, extended families, the people, the nation, the world, and the universe, both respectively and collectively. All the while, each civic person pursues private interests, perhaps including art expressions that inspire the joy he or she seeks. The privately perfected civic person behaves with integrity and fidelity. A civic culture cannot be coerced by government, but civic Supreme Court Justices may nudge the people toward public-integrity.

Lawyers and law professors can immediately help by admitting to their mirrors that the facts do not respond to opinion, and the people are too psychologically powerful to yield to opinion: The people innately respond to the facts as the bedrock for justice. Now that these ideas have words and phrases, a civic people will rapidly demand that all courts conform to the facts rather than opinion.

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Phil Beaver
on December 05, 2016 at 20:48:35 pm

What separates marriage from every other form of loving relationship is the ability and desire to exist in relationship as husband and wife. Marriage cannot be and not be existing in relationship as husband and wife, simultaneously. Cf. Orin S. Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012) and "...the first indemonstrable principle is that "the same thing cannot be affirmed and denied at the same time,"... and on this principle all others are based...
- St. Thomas Aquinas, Summa Theologiae I-II, q. 94, a. 2."

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Nancy D.

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