Bench Memos

Law & the Courts

More on Cass Sunstein and ‘Lullaby Arguments’

In connection with my recent posts on the SSM “bait and switch,” a reader calls to my attention Lincoln’s deft term “lullaby arguments” to identify those false claims designed to lull the listener into a sense of complacency. Cass Sunstein appears to be practiced in crafting lullaby arguments. In addition to his assertion in 2006 that the “likelihood religious organizations would lose their tax exemption [over opposition to SSM] is as close to zero as anything in law is,” he offered this testimony in a Senate hearing in 2004 to support his position that a constitutional marriage amendment was utterly unnecessary:

It is possible that the Chicago White Sox and the Chicago Cubs will meet in the World Series and play to a seventh game tie. That is unlikely, but that scenario is more likely than it is that the Supreme Court of the United States, as currently constituted, will hold that there is a constitutional right to same-sex marriage. This is a reckless conception of what is on the horizon and it is indefensible by reference to anything any Supreme Court Justice has said, at least on the bench, and I believe even off the bench. (Emphasis added.)

The capacity for self-deception being what it is, it’s possible, I suppose, that Sunstein actually believed what he said. But he was testifying less than one year after the Supreme Court’s 6-3 decision in Lawrence v. Texas. In his majority opinion for five justices, Justice Kennedy combined his usual gauzy rhetoric with the specific assertions that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child reading, and education” (emphasis added) and that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”  

If meant to be taken seriously as legal analysis, Sunstein’s claim that any concern that existed in 2004 that the Court might “hold that there is a constitutional right to same-sex marriage” was “indefensible by reference to anything any Supreme Court Justice has said” was grossly incompetent. (Sunstein testified that the justices in the Lawrence majority “went way out of their way to suggest they were not coming near to the same-sex marriage problem.” (Emphasis added.) No, they just tossed in their own lullaby line that the “present case” “does not involve” the marriage question.)

Although the composition of the Court has changed since 2004, three of the changes (Roberts for Rehnquist, Sotomayor for Souter, and Kagan for Stevens) would appear to be ideologically neutral on the marriage question, and the fourth (Alito for O’Connor) ought to be better for the cause of judicial restraint. So the fact that the Court, as it is now constituted, seems all too capable of inventing an SSM right shows that it was hardly “reckless” for folks to fear in 2004 that the Court might do so.

The concept of lullaby arguments is very similar to what I’ve called “boil-the-frog gradualism.” As it happens, I applied that term to Sunstein’s professed “minimalism” in my review of his 2005 book Radicals in Robes:

Sunstein in fact regards minimalism, over the long run, as the tactically prudent, gradualist path to a liberal “perfectionist” rewriting of the Constitution. Thus, for example, he doesn’t want the Supreme Court to impose same-sex marriage “at this early stage” because it would be better if the courts would “act as catalysts” on gay rights.

Sunstein’s minimalism, like Ruth Bader Ginsburg’s, is better described as boil-the-frog gradualism. We American citizens are like the frog in the pot of water on the stove. If the Court turns up the heat—that is, imposes the Left’s agenda—too suddenly, we’ll jump out. But if it does so gradually, we’ll sit there in blissful ignorance until it’s too late.

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