The Corner

Law & the Courts

Justice Kennedy’s Rhetorical Flourishes Are Embarrassing, Not Praiseworthy

Already infamous for his rhetorical flourishes, Justice Anthony Kennedy outdid himself in Obergefell​, the gay-marriage case the Supreme Court decided Friday. For those who haven’t seen it yet, here is how his opinion begins:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful . . .

This is the language of a neutral arbiter? How can anyone expect what follows to be a careful, unbiased analysis of the relevant case law?

Throughout his opinion, Kennedy lapses again and again into vacuous rhetoric, at one point drawing the extended ire of Justice Scalia for this bit of philosophizing: “[Rights] rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” The words flow together nicely in that sentence, but the meaning is elusive, to put it mildly. Trying in vain to parse it, Scalia’s dissent inserts “whatever that means” in brackets after each of Kennedy’s empty phrases.

Kennedy concludes with emotion and hyperbole, claiming that gays and lesbians will be “condemned to live in loneliness” if their unions are not recognized as marriages by the government.

When a legal decision is anything other than a straightforward technical analysis, it casts suspicion on the author as unserious and on his reasoning as unsound. So it’s troubling that any judge would want to write an opinion full of pseudo-philosophical flourishes, and it’s even more troubling that he is praised by the media for doing it.

Compared with scholars in other fields, judges seem unique in their love of purple prose. It’s hard to imagine reading an article in The Lancet about, say, the effectiveness of a certain drug, only for the clinician to start bloviating about the mystical nature of human health. Or imagine reading the Quarterly Journal of Economics for its analysis of capital-gains taxation, only to discover that the researcher has sprinkled paeans to social justice throughout the text. (“The tax code promises prosperity to all within its reach . . .”)

One of the basic rules of persuasive writing is to express ideas as clearly as possible. Teachers are fond of saying that if you cannot put your argument down on paper in straightforward prose, then your argument is probably not valid in the first place. Take heed, Justice Kennedy.

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