Eric Berger (University of Nebraska at Lincoln – College of Law) has posted The Rhetoric of Constitutional Absolutism (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:
Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. It ultimately argues that the costs outweigh the benefits and proposes a more nuanced, conciliatory constitutional discourse that could acknowledge competing arguments without compromising legal clarity or the rule of law.