The focus of this Essay is on the importance that apparent honesty has on the persuasive force of Supreme Court opinions. Legal scholars and Supreme Court Justices have observed the connection between the Court’s legitimacy and the persuasive force of its opinions. Because the Court’s opinions are both an exercise of the Court’s power and the justification for that power, the Justices’ opinions must be persuasive.
The study of rhetoric has long recognized three methods of persuading an audience of the correctness of a particular view. Those methods are appeals to logic, credibility, and emotion. Of theses three methods, I assert that ethos/credibility is the most important to the United States Supreme Court, and that apparent honesty is a necessary part of such an appeal.
To support my assertions, I have divided this Essay into three Sections. Section I briefly discusses ethos-based appeals and how such appeals are generally derived. Section II applies this approach to Supreme Court opinions. Finally, in Section III, I identify friction points in Supreme Court decisions where there is a heightened danger of appearing less than fully honest. Because failing to appear honest can significantly harm the Court’s credibility, avoiding such an appearance is critical. I assert that there are at least three circumstances where the danger of appearing less than fully honest is increased. These three credibility “choke points” involve stare decisis, high-profile politically contentious cases, and changes in a Justice’s position. Additionally, I suggest several methods of reducing the danger created by these “choke points.”
Timothy C. MacDonnell,
Practical Truth: The Value of Apparent Honesty in Supreme Court Opinions,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol69/iss2/7