Losing Twice: Harms of Indifference in the Supreme Court
by Emily M. Calhoun
In Losing Twice, University of Colorado Law School Professor Emily Calhoun argues that the way judicial opinions are written can cause losing stakeholders to suffer additional, unnecessary harms. Given the topic, the book will be of interest to judges and others who write judicial opinions; however Professor Calhoun’s intended audience is “ordinary citizens.”
Calhoun’s thesis is non-ideological. Debates about originalism, minimalism, and activism are refreshingly absent from her book. Instead, Losing Twice focuses on people—most narrowly the non-prevailing parties in Supreme Court constitutional-rights disputes, and broadly, an array of stakeholders affected negatively by court decisions. These stakeholders come to the court in good faith, with much at stake, making the judicial choice to rule against them “essentially [a] tragic choice.”
Judicial opinions can be written in a way that honors losing stakeholders’ status as citizens or that demeans them; that acknowledges their continuing role in constitutional democracy or that shuts them out; or that respectfully articulates their views on an issue or that trivializes those views. For Calhoun, properly honoring losing parties and positions in judicial opinions is more than just a nice thing for judges to do. Opinions that demean losing litigants, that ignore them (willfully or inadvertently), or that hide behind hyper-technical rationality or “the doctrine made me do it” rhetoric create real harms, not only to the immediate parties but also to judicial legitimacy and democracy.
Calhoun offers the judicial opinions for two abortion cases, Roe v. Wade and Gonzales v. Carhart, as examples of opinions causing harm. Although the outcome in the first case is viewed as a pro-choice victory and the outcome in the second a pro-life one, Calhoun argues that both opinions show an indifference to the constitutional stature and autonomy of women.
Held up as an example of a well-written opinion is retired Denver Judge Jeffrey Bayless’s opinion in Romer v. Evans. According to Calhoun, Judge Bayless carefully laid out the arguments of each side and made a “special effort to address all citizen stakeholders,” not just those identified in the parties’ briefs. Judge Bayless also acknowledged the difficulty and impermanence of his decision and “put himself and his judgments about the legitimacy of the decision at the mercy of his audience.”
Calhoun’s claims are not beyond critique. Given how seldom lawyers—let alone “ordinary citizens”—actually read judicial opinions (something Calhoun seems to acknowledge in her discussion of Roe), the composition of opinions may have little effect on our public knowledge of their meaning, or on how their language is paraphrased and summarized by the media or by other instant and historical intermediaries. Nevertheless, judges, lawyers, and armchair Supreme Court enthusiasts will find Losing Twice to be a thought-provoking read that sheds new light on famous constitutional law decisions and that may inform their own written expression.