Title: Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions
Abstract: language of an intellectual. He had been Harvard Law School professor before he came to the Court; his themes of judicial restraint and deference to democratic will were addressed to particular and select class of society. 2 0 On today's Court, Justice Scalia's voice readily recognizable through his matter-of-fact style of writing, which often conveys his impatience by challenging the foolishness of his colleagues.202 His voice a carefully constructed artifice, the persona that conveys emotional reactions as well as legal arguments.20 These are examples not only of unique styles of judicial writing; they are also illustrations of unique methods of judicial decision making, which the Justices convey to the public through their opinions. By reading decision written by Justice Black, an advocate would know to avoid the lofty ideological arguments and flowery language that appealed to Justice Frankfurter. A more accessible argument, appealing to seemingly commonsense or straightforward reading of the Constitution, was more likely to sway Justice Black, just as it more likely to convince Justice Scalia today. Judges also express their individual views and personality by using particular words in the articulation of legal standards. These words, of course, have immense implications for the law, as lower courts, lawyers, and the public attempt to determine what exactly the law is based on higher court's language.20 As one commentator has noted, [W]hen court explains its decision in judicial opinion, literally every word has potential future effect on someone's welfare.205 Given their effect on the law and the outcome of future cases, words in judicial opinions should be-and often are-chosen with an eye carefully attuned to potential implications. The desirability of these implications, and thus the use of particular word or phrase, depends on the author's personal view of where the law stands and the direction in which it ought to move.206 201. Id. at 201-04. 202. Id. at 226-27. 203. Id at 227. 204. See Cappalli, supra note 179, at 287 (Rules are constructed of words, and words are imperfect expressions of thought. This particularly true of the abstract words used in law.... From the moment of publication the judicial opinion, and every word within, becomes an instrument for good or evil in the hands of lawyers and judges.). 205. Id. 206. These personal views on the law are necessarily determined and shaped by the judges' individual personality. See supm Part IVA. 20 12] 1229
Publication Year: 2012
Publication Date: 2012-01-01
Language: en
Type: article
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Cited By Count: 6
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