Supreme Judicial Bullshit

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50 Ariz. St. L.J. 141 (2018). Adam J. Kolber.

While we have come to expect bullshit from politicians, there is no shortage of judicial bullshit either. After discussing Harry Frankfurt’s famous description of bullshit, I illustrate possible instances of judicial bullshit in a wide range of bioethics cases, mostly at the Supreme Court. Along the way, we see judges bullshit for many reasons including the desire to keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, make it seem like their hands are tied, and appear to address profound questions without actually staking out provocative positions. I pay particular attention to the discussion of reproductive rights in Planned Parenthood v. Casey where the joint opinion authors arguably used bullshit to deflect attention from the thorny philosophical questions at the core of rights to choose. Such deflection is not necessarily a flaw as some uses of bullshit may be warranted or even praiseworthy. Whether we applaud or condemn the phenomenon, however, judicial bullshit does reduce transparency, and scholars, journalists, and other judges sometimes take bullshit more seriously than perhaps they should.

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