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?