The Importance of Appearing Principled

Abstract

Appearance is often construed as something negative. It is mere appearance; this expression highlighting the derision with which the defenders of the real view the purveyors of image. The words to live by are that appearances deceive. It is an ancient insight. Socrates, in Plato's Gorgias, warns against the dangers of rhetoric: in the same way as cosmetics produce only a seeming beauty where exercise and training produce actual improvements in bodily form, so too oratory only flatters the soul, Socrates counsels, while politics and philosophy can improve it. Today, children continue to be taught, don't judge a book by its cover. Of course, appearances do not always belie that which they are the appearances of. But the wisdom reflected in the maxim above admonishes that it is the substance (of the body, the soul, the book) that is important, and but a happy coincidence when the appearance of a thing is of the same normative significance as the thing itself. Handsome is as handsome does. There is thus a paradoxical air to the claim that appearance itself is important, normatively speaking. Interestingly, Supreme Court opinions increasingly adopt such a view. These decisions claim that an opinion must look principled as well as be principled in order to legitimately and justifiably fulfill the judicial function. This article will defend the initially counter­intuitive claim that the approach currently being adopted by the Court is the correct one; the Court should attend to its appearance. Part I of the article offers a brief documentation of the Court's growing concern with appearing principled. This documentation consists of an examination of a development in stare decisis doctrine. Stare decisis provides fertile ground for this analysis because the recognition of the importance to the Court of appearing principled has always been part of the rationale for that doctrine, though previously this has been recognized, for the most part, by commentators only. Now, the role that stare decisis doctrine plays in maintaining the Court's image is being recognized in judicial opinions - sometimes as part of the rationale for the doctrine and sometimes as a factor to be incorporated in the application of the doctrine. Part II of the article examines this phenomenon. It argues that the Court ought to consider whether or not a decision will be perceived as principled, when reaching a result. It is a two-step argument. First, Part II addresses whether courts are permitted to consider the likely effect on the esteem in which the Court is held. And second, this Part addresses the question of whether the Court ought, all things considered, to do so. The argument from permission begins with the claim that the judicial role, properly understood, includes the obligation to preserve and maintain an image of the Court as a principle-guided institution. The judicial role requires that judges do more than simply decide cases, it requires that judges justify their decisions. Justification in the judicial context involves the giving of reasons to others. Thus, in order for a decision to be justificatory, it must not only be well-reasoned and well­grounded, but also must appear so to those to whom it is addressed. Moreover, it must be based on reasons that others can be expected to accept as reasons (though not necessarily as the best reasons) for the case at hand.