Tuesday, May 27, 2014
Momentum, the physics of persuasion, and the relative weakness of the "force of argument" in shaping same-sex marriage litigation outcomes
Will Baude at the Volokh Conspiracy links to a piece by Robert Barnes in the Washington Post that reflects on the unanimity of district court decisions finding a constitutional requirement of same-sex marriage and the diversity of judicial backgrounds behind those decisions. Baude suggests that one influence may be a "momentum effect" that causes judges to worry about being overturned or being "on the wrong side of history."
Baude's suggestion brings to mind former Solicitor General Seth Waxman's ruminations on what he called "The Physics of Persuasion." According to Waxman, "analogues to ordinary principles of physics can sometimes help explain, and predict, the direction of Supreme Court decision-making." If this claim is correct, Waxman observes, then "generally one would expect the force of the better legal argument ultimately to determine the destination of the law. Where stronger and weaker arguments oppose each other, the one with greater jurisprudential force should prevail." But what is true generally is not true universally. And this is where the analogy becomes interesting. Waxman continues:
[I]n individual cases, force of argument alone does not determine outcome. Other forces can also influence the direction of the law. One of those forces is friction. And friction in litigation works just as it does in more familiar contexts. The broader the undertaking requested of a court – in other words, the more points a case touches – then the more friction it is likely to encounter. And the more massive the new program that the government asks the Court to uphold – in other words, the more ponderous its weight – then the more pronounced is friction’s effect.
Another force is magnetism. One often hears attorneys say that the optics of a case are not good, the atmospherics are bad, or there is an unattractive odor to the matter. Those sensory descriptions all point to what is a singular phenomenon – courts often find particular results attractive or repellent for reasons other than the force of legal argument.
Forces like magnetism and friction can cause the law to begin moving in the wrong direction. And because principles like inertia and momentum also apply, once doctrine starts moving in a particular direction, it will continue to do so until other forces bring it to a halt.
Armed with these insights from an experienced Supreme Court practitioner, what might we be able to speculate about the influence of constitutional physics in the same-sex marriage litigation? Perhaps a sea change in public opinion has resulted in the removal of friction. Perhaps plaintiffs' counsel have figured out how to maximize the force of magnetism. Maybe fear of being on the wrong side of history exacerbates inertia. And momentum is surely on the side of those challenging the constitutional permissibility of basing civil marriage on the conjugal understanding of marriage as the union of husband and wife.
Constitutional inertia and momentum operate in such a way that "once doctrine starts moving in a particular direction, it will continue to do so until other forces bring it to a halt." What "force," if any, might bring the current doctrinal movement to a halt when the Supreme Court again takes up a case presenting the issue of same-sex marriage? The "physics of persuasion" is less helpful in answering this question than in posing it. But the persuasiveness of the physics analogy suggests something about the nature of the constitutional change taking place. The analogy begins by assimilating the "force of argument" to the same category of "force" as frictional force and magnetic force. These are physical forces, while "the force of argument" is not. Similarly, inertia and momentum are physical properties, not the properties of argument. Given that the analogy seems to work nonetheless, what does this reveal about the relative contribution of "the force of argument" in shaping constitutional law? At least in this context, perhaps the analogy suggests the relative weakness of the "force of constitutional argument" in comparison with the push and pull of other forces more analogous to those studied by political physicists rather than by jurisprudes.