"Terms of Heart": Judicial Style in Obergefell v. Hodges

Abstract

The law lives in language. The Supreme Court issues written opinions to inform the parties, the bar, and the public of its decision in each case. But the content of the decision cannot be divorced from the way it is written—that is, the style. Fundamental rights cases present a singular stylistic challenge both because they must reduce some ineffable liberty to language, and because they are the cases most likely to be read by the public. Justice Anthony Kennedy’s 2015 opinion in Obergefell v. Hodges was criticized not only for its outcome, but also for its supposedly non-legal style. This Note traces the style of Supreme Court decisions throughout history, and summarizes the reactions to Obergefell in both the legal and public audiences. This Note then outlines the Law and Literature movement, and argues it is an appropriate lens through which to analyze the style of Obergefell. To interpret a judicial opinion, the Law and Literature movement looks at two relationships the opinion creates: that with the parties it speaks about, and that with its audience. This Note argues that Obergefell exemplifies the Law and Literature ideal, by creating an empathetic relationship with its plaintiffs and speaking to a reader who values principled decision making over technical legal tests.