Thursday, February 18, 2010

Cal L. Rev.: Chemerinsky on Opinions as Rhetoric

UCI Law Dean Erwin Chemerinsky contributes "Judicial Opinions as Public Rhetoric," which wonders whether opinions may, or should, be directed to the public in an attempt to persuade discourse on legal issues:

"By any measure, the California Supreme Court’s decision in In re Marriage Cases is the most significant in the last year and in recent memory. Chief Justice George’s opinion thoroughly and forcefully explains why gay and lesbian individuals have the right to marry under the California Constitution. This conclusion is founded on basic principles of California constitutional law: the right to marry is a fundamental right, and discrimination on the basis of sexual orientation is inherently suspect.

"Chief Justice George’s opinion is striking in how thoroughly and carefully it explains the constitutional basis for marriage equality. Yet its reasoning and rhetoric played virtually no role in the public debate over Proposition 8. If it had been far shorter and much more poorly reasoned and written, the outcome would surely have been the same on election day.

"The interesting and unexplored question is whether the opinion could have done anything to sway public opinion or to change Proposition 8’s fate. But is this even a fair question to ask? Should judicial opinions seek to persuade the public? To answer that question requires thinking about whom judges actually intend to address and whom they should address."