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Judgment writing: US Supreme Court gay rights decision scores A+

A few years ago during a public speaking course, I was given a copy of John F. Kennedy’s 1961 Inaugural Address. Then I was instructed to stand up at the front of the class and read it out loud.

Ask not what your country can do for you, ask what you can do for your country”, are amazing words from the mouth of the President of the United States. From my mouth – used to the language of Aussie self-deprecation and cynicism – it was almost impossible to say them aloud.

The United States has a history in the art of rhetoric that Australia lacks. This also finds expression, or lack thereof, in Australian judgments. Former High Court Judge Michael Kirby considers that the distinction, in judgment writing at least, can be partially explained by the more limited functions of Australian judges, deprived of a Bill of Rights or Charter to express views of a philosophical, sociological or economic nature.

To gain insight into The Hon. Michael Kirby AC CMG’s thoughts on judicial writing, I strongly recommend reading his paper based on a lecture he delivered to the First Australian Conference on Literature and the Law held at the University of Sydney, April 20-22, 1990.

Such is the power and force of the majority (and dissenting) opinions of the United States’ Supreme Court in Obergefell v Hodges 576 U.S. ___ (2015) (US gay rights decision) that it begs the question: Should judgments look more like this in Australia?

The following passage from the majority opinion of Kennedy J (joined by Ginsburg, Breyer, Sotomayor and Kagan JJ) almost made me cry. See what you think:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilizations oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.” [p. 28]

One of my favourite YouTube clips ever, is Sonia Sotomayor on Sesame Street teaching Abby the meaning of career:

The US gay rights decision

How one should interpret the Fourteenth Amendment to the Constitution was central to whether same sex marriage should be upheld across the nation. It provides that no State shall “deprive any person of life, liberty, or property, without due process of law”. Key to the case was the meaning of ‘liberty’.

The majority decision

The majority acknowledged that marriage was historically between a man and a woman, and likely contemplated as such when the Fourteenth Amendment was written, but noted that as community attitudes changed, so too should one’s interpretation of the Constitution. For that reason, the Kennedy J judgment observed, previously banned activities such as interracial marriage, marriage by prisoners and gay consensual sex were now lawful activities.

The language used by Kennedy J was plainly intended to persuade and motivate. It was rhetorical language.

Rhetoric, a tool for practical debate used to inform, persuade and motivate a general audience using probable knowledge to resolve practical issues, has its roots in Classical Greece. Its most famous proponent is Aristotle, The Art of Rhetoric being a ‘must read’ for those wanting to learn more about its philosophical roots.

Kennedy J used a number of persuasive techniques in his opinion. First, the petitioners (or plaintiffs as we would call them in Australia) were described in very human terms, clearly to arouse sympathy for their plight.

For example, the reader learns of the relationship between James Obergefell and John Arthur who were together for 20 years before Mr Arthur was diagnosed with a progressive debilitating disease with no known cure. The two men decided to marry before Mr Arthur died. To do so, they travelled from Ohio to Maryland where same sex marriage was legal. The couple wed inside a medical transport plane as it remained on the tarmac in Baltimore. Mr Arthur died three months later. However, Mr Obergefell could not be listed as the surviving spouse on Mr Arthur’s Ohio death certificate. Mr Obergefell deemed this omission “hurtful for the rest of time”, a matter which Kennedy J emphasized in his opinion.

Secondly, Kennedy J, after noting previous legal strides, laid bare in emotional terms what same sex couples lacked: “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty”. [p.14]

Thirdly, Kennedy J then strongly promoted the benefits of same sex marriage, with a particular focus on the permanency and stability important to children’s best interests (and a caveat that an ability to procreate has never been a prerequisite to a valid marriage in any State).

Finally, whereas an Australian judge might have concluded with a practical statement such as “we order same sex marriages to be lawful on the same terms and conditions as marriages between persons of the opposite sex”, Kennedy J built to the crescendo extracted above.

The story line ‘arc’ was not dissimilar to the kind of screenplay where a problem or disaster leads the viewer into an emotional vortex, after which there is a slow build leading to an exhilarating denouement.

The dissenting judges

The power of the US gay rights decision lies also in the force of the dissenting opinions. The opposing views are passionate. The language used is strong and accessible. The reader is left in no doubt that the US Supreme Court’s tea room is likely to have a chilly atmosphere in the months to come.

Yet the overall impression from reading all the judgments, whichever side of the fence one sits, is that this is a rich democracy in full swing. It feels healthy and refreshing that strong emotions are brought into the open rather than kept behind closed doors.

Most of the dissenting judges sought to distance their conclusions from any personal position they might have on gay marriage (although we can kind of guess what it might be). Instead, they led with the chin by challenging the majority’s reasoning. They felt the majority went too far by reading too much into the Constitution, when the task of creating such important social change – to their minds – should remain with the legislature.

Roberts C.J.

In terms of accessible language, look no further than Roberts C.J. who was particularly uncomfortable that “five lawyers who happen to be [Supreme Court Judges]” could create such legal change:

“…the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” [ p.3]

Scalia J

There is compelling rhetoric. There is also hyperbole. Of all the judgments, all of which contain strong judicial language of one form or other, this is the one that seems the most over the top.

It is hard to discern a compelling narrative. Instead, the indelible impression is that this is a person who is just plain angry.

In terms of forceful language, Scalia J’s denouncement of the majority opinion on the basis that he wants “to call attention to this Court’s threat to American democracy” [p. 1] tends to uphold the very tradition he considers threatened.

He also pulls no punches: “It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” [p.2]

In his conclusion, in the sentence immediately after spruiking the benefits of the Court’s (previous) reputation for “clear thinking and sober analysis”, Scalia J intones: “Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall”. [p.9]

Thomas J

Rather than straying too much into the pugilistic judicial language of Scalia J, Thomas J keeps logic firmly on his side. In doing so, he offers the most compelling case against judicial intervention.

Thomas J delves into the history books to examine what “liberty” in the Fourteenth Amendment is supposed to mean. With a nod to Blackstone’s 1769 Laws of England, and a segue into the Magna Carta, Thomas J concludes that the meaning of ‘liberty’ is more consistent with the concept of freedom from physical restraint. However, if it is more than this, he postulates that in the American legal tradition, liberty has long been understood as individual freedom from government action, not a right to a particular governmental entitlement.

Accordingly, Thomas J concludes that, under such a definition of liberty, the petitioners cannot claim that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, he says, they have been able to cohabitate and raise their children in peace. They have been left alone to order their lives as they see fit.

He concludes:

Our Constitution – like the Declaration of Independence before it – was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from – not provided by – the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.” [p.18]

Alito J

The only judge prepared to declare his position (almost) openly against same sex marriage is Alito J.

His judgment focuses on history, and reads as a lament to the institution of marriage and its (supposed) decay. Alito J’s adopts the position that the purpose of marriage is to procreate, suggests that the tie between marriage and procreation is frayed (in that more than 40% of all children in the USA are born to unmarried women), and that romantic love as a prerequisite to marriage is a development with far-reaching consequences.

In other words, Alito J accepts that marriage as a construct is evolving but regards any change to be so fundamental that people should make it through their elected officials.

He concludes by referring to the important consequences of the decision: “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy”. [p.6]

Note the use of language such as “will” rather than “may” which Australian judges typically avoid because it precludes the possibility of an alternative.

Tipping into the rhetorical style, Alito J then paints a vivid word picture:

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools”. [p.7]

He concludes by leaving us in no doubt of his outrage: “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed”. [p.7] This statement would be inimical if used by an Australian judge. Yet it feels invigorating and stimulating to see such words in the clear light of day. There is no closed-door campaign, no leaks to the media about how Alito J “really felt” in the aftermath of the decision. We know he is furious and worried because he has told us.

Should Australian Courts go down a more rhetorical path?

Michael Kirby observes that courts are public theatres in which many of the human dramas of society are played out in an abbreviated and somewhat stylized fashion. As he states, judgments and legal opinions record some of these performances and therefore provide opportunities for skillful writing.

However, his thesis is that Australian judicial writing is ‘constrained’ due to things like the need to deal with fact and law, and time pressure.

It is possible that ‘constrained’ is code for ‘boring’…

Michael Kirby also suggests that ideas are the most powerful engines for change and progress.

One might also suggest that judges should also regard themselves as leaders, not just as decision makers or interpreters of the law.

In Australia, the concept of leadership is a vexed question because, unfortunately, it seems that fewer people than ever before exhibit attributes of great leadership in public life: independence, integrity, humility and good conscience.

Yet judges must aspire to these attributes. Therefore, if a judgment records how one person has resolved the battle of ideas, why not exercise leadership when doing so? In other words, the writer can aim to bring people along with them.

It is true that most judgments do not deal with fundamental concepts such as the essence of human liberty. However, there are many recent Australian judgments on topics such as free speech, indigenous issues, employer and employee relationships, the list goes on, which touch on the dynamics of how people can – and should – generally interact with other.

Legal prose need not be the poor cousin of the literary pantheon, slightly above a political speech and just below a sermon (Justice Wallach of Supreme Court of New York, cited in M D Kirby at p.15).

Legal prose can inspire, it can be exhilarating and it can persuade. So why not try a word picture, some short sentences, an evocative introduction or even a hint of irony? The law student, the litigant, the lawyer or even fellow judges are likely to offer a very grateful thanks.



2 Responses to “Judgment writing: US Supreme Court gay rights decision scores A+”

  1. Jacqueline Wharton

    Hi Enjoyed this immensely.I was at the U.S. Supreme Court on Friday when the decision was handed down – there was a frisson of love and excitement in Washington although many protesters as expected. I can’t believe some of the language that the U.S. Supreme Court justices use – lord denning would roll over in his grave. So emotional!! Judicia putsch by justice Scalia was one of my favourites!

    • Natalie Hickey

      I can’t believe you were there! Very envious. Washington DC is a great place to be when incredible things happen. I was there in the (ahem) early 1990s for Bill Clinton’s inauguration. There is a concept of pride and citizenship at the seat of such naked democracy which is hard to shake. P.S. I secretly think Lord Denning would have loved to go just that touch further on the rhetoric…


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