"Sociological Legitimacy" in Supreme Court Opinions

I. IntroductionIn A Political Court, Judge Richard Posner dismisses the reasoning of many Supreme Court opinions as "professional varnish"1 and a "mask,"2 behind which the real work of deciding cases takes place. Like Judge Posner, many readers of the Court's decisions believe we can distinguish between two kinds of reasons: (a) those that do the work of deciding the cases, and (b) those that are put forward for the purpose of creating an impression of judicial deference to text and history.3 These are the work horses and the show horses of constitutional argument. The work horses consist largely of value choices between competing political and social goals, while the show horses include, at least some of the time,4 the "intent of the framers," precedent, and the application of multi-part tests. Scholars have accumulated considerable evidence of the existence of show horses: The Court advances historical arguments when doing so suits the Court's purpose and ignores them when they are inconvenient.5 It cites precedents to support its rulings, yet acknowledges that precedent is a weak constraint in constitutional cases.6 Its formulae amount to "an attempt to achieve one effect: that the words, once in place, will do the work as the judges watch, recording the score."7 Meanwhile, the majority's political and social aims may drive the outcomes of hard cases even when they receive comparatively little attention in the opinions.8 Commentators give short shrift to the show horses. They argue over whether a given argument falls into the show horse or the work horse category, lambaste the show horses, and then set them aside in order to pursue serious constitutional analysis.9 A widelyshared premise of constitutional scholarship is that the Court ought to give true rather than false reasons.This Article rejects that premise. My thesis is that the Court's opinions may serve worthy goals and earn our respect even if other reasons account for outcomes. To borrow Judge Posner's metaphor, I believe that the Court's professional varnish and its masks deserve more scholarly attention and a kinder assessment than they have received. Deployed with skill and prudence, false (but widely acceptable) reasons help maintain the appearance that the Court is in step with the broad public, to whom it is ultimately accountable. Adept appearance management can succeed even when segments of the public differ sharply among themselves as to the norms of constitutional adjudication. In this way, putting an attractive face on its rulings may serve the Court's vital institutional need for public confidence. Appreciating the role of appearance management in ensuring the Court's institutional effectiveness enhances our understanding of the opinions and opens the door to a whole new set of criteria for evaluating them. In making these points, I borrow Richard Fallon's illuminating distinction between "legal legitimacy" and "sociological legitimacy."10 Legal legitimacy requires that an opinion candidly state the reasons for the outcome.11 Sociological legitimacy is achieved by an opinion that secures public acceptance of the Court's rulings.12 Badly-reasoned opinions may lack legal legitimacy, yet succeed in winning sociological legitimacy. There may be a difference between reasons that will please the Court's audience and those that do the work of deciding cases.As the term "sociological legitimacy" signals, this Article treats the Justices as social actors who have a common interest in the Court's success as an institution. Like anyone who does not live on a desert island, the Court, in order to achieve its goals, has to be concerned with what other people think of it.13 In any given case, and especially in the most prominent ones, the Court must take care to behave in a way that inspires or maintains public confidence, even as it insists on a large role for itself. In the course of resolving a case, the Court needs to make not only legal decisions, but also strategic choices as to the contents of the opinion. …