For whom do the justices write their opinions? In the run-of-the-mill Supreme Court ruling, the answer to this question seems self-evident. Who would plow through a lengthy, often technical, always citation-laden opinion other than judges, lawyers and law professors? Yet when it comes to big ones, the minority of decisions that capture the attention of the American people, the justices often seem to aspire to a broader audience in their written opinions.
The Chief Justice’s dissent in Friday’s same-sex marriage ruling illustrates this point in a particularly direct way. In closing his dissent, the Chief Justice makes a highly unusual move: he shifts to the second person in order to directly address what he views as his target audience:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
The Chief Justice seeks to impart a civics lesson on the role of the courts and the limits of the Constitution to supporters of same-sex marriage. His point is that just because someone believes something to be right does not make it constitutionally mandated, that the courts should not be relied upon to deliver victories on questions of policy (as opposed to law).
The other dissenting justices seem less interested that the Chief Justice in reaching out to the other side. Their primary audience seems to be those who already agree with their position, either because they oppose same-sex marriage or because they oppose federal judicial intervention on the issue. Justice Scalia issues dire warnings of “this Court’s threat to American democracy” and lashes out at the “mummeries and straining-to-be-memorable passages” of Justice Kennedy’s opinion for the Court. Scalia is hardly reaching out to possible coverts with this over-the-top language. Justice Thomas’s dissent insisted up some narrower legal points—the importance of founding era history in interpreting constitutional language, the invalidity of a “substantive” reading of the Due Process Clause.
Justice Alito expressed concern that the Court’s ruling might be “used to vilify Americans who are unwilling to assent to the new orthodoxy” in support of same-sex marriage. “[T]hose who cling to old beliefs … will risk being labeled as bigots and treated as such by governments, employers, and schools.” Unlike the Chief Justice’, Justice Alito chooses language that does not seem targeted at the advocates of the “new orthodoxy.” This is less a Lincolnian call for sympathy on the part of the victors than a mournful warning to the losers that they are in store for bad times.
In his opinion for the Court, Justice Kennedy seems to be attempting to reach out to multiple audiences. The rhetoric about the promises of liberty and the search for personal identity that so exercised Scalia seem intended to reinforce and inspire rather than persuade. But his extended discussion of the value of marriage seems aimed, at least in part, at encouraging opponents of same-sex marriage to reassess their assumptions:
Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other….
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.
Whether the language of any given Supreme Court opinion, apart from the declaration of a winning side and a losing side, has much of an effect on society is hard to discern. Chief Justice Warren sought to write his opinion in Brown v. Board of Education in a way that might persuade defenders of segregation. He described his effort to his colleagues as designed to be “short, readable by the lay public, non‐theoretical, unemotional, and, above all, non‐accusatory.” But this effort hardly stemmed the tide of massive resistance to desegregation that gained strength in the ruling’s aftermath. Unlike Brown, the same-sex marriage opinion joins a clearer, stronger historical trend in support of same-sex marriage, however. Whether Kennedy’s rhetoric changes minds or not, minds are being changed all around us.