Washington and Lee Law Review, Vol. 64, No. 3 (Summer 2007), pp. 1011-1070

Abstract

Analysis of a Supreme Court opinion ordinarily begins from the premise that the opinion is a transparent window into the Court's thinking, such that the reasons offered by the Court are, or ought to be, the reasons that account for the holding. Scholars debate the strength of the Court's reasoning, question or defend the Court's candor, and propose alternative ways of justifying the ruling. This Article takes issue with the transparency premise, on both descriptive and normative grounds. Especially in controversial cases, the Court is at least as much concerned with presenting its holding in a way that will win allegiance from its audience, or at least deflect and soften criticism. Drawing on sociologist Erving Goffman's study of "appearance management, " the Article shows that the Court's opinions often reflect more concern with its audience's sensibilities than with the reasons that drive the outcomes of cases. The Article then considers the normative issues raised by the Court's appearance management. It argues against blanket condemnation of the practice, because it is not an unalloyed evil. At the same time, by identifying the merits and demerits of judicial appearance management, we can identify contexts in which it may be more or less deserving of criticism.

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