On Hypocrisy

About Strategies of Legal Double-Speak, Both Good and Bad

Stare Decisis as defined by Black’s Law Dictionary: “Lat. To stand by decided cases; to uphold precedents; to maintain former adjudications. 1 Kent, Comm. 477.”

Dear Reader,

John Milton believed that hypocrisy was “the only evil that walks / Invisible, except to God alone.” He must have been onto something, but I doubt he was correct. Hypocrisy is not invisible.

For example, Justice Kagan spent considerable time and energy, over many years, developing and expounding statutory stare decisis only to compromise it in Cox v. Sony. Then she rose in firm defense of it again in Louisiana v. Callais, only to see it die out in a paradoxical flourish of the Callais majority. Kagan’s apparent hypocrisy, as to her own principles of stare decisis, was potentially an attempt to make a deal with a hostile majority as she had successfully done in Allen v. Milligan.

In one sense, Kagan’s last straw was pulled in Callais, and as a result there is potentially no basis to hope that the Court will stand by its previous decisions in future cases. On the other hand, stare decisis was violated all the way back when Janus v. AFSCME was decided, when the Court began to balance away its previous decisions. By the time the Court started overruling substantive rights for the first time when Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, the Court already was extending an ad hoc “precedent” to overrule precedent symbolized by Janus.

By this time, Kagan had already been hard at work developing her now defunct line of “supercharged” statutory stare decisis. This line appears to be rooted in Justice Kagan’s 2014 decision in Michigan v. Bay Mills Indian Community, where she opined that “stare decisis is a foundation stone of the rule of law.” In 2015, she decisively expanded upon Bay Mills in Kimble v. Marvel Entertainment.

The deal Kagan tried to make with more radical members of the bench was especially apparent in Ramos v. Louisiana, in which Kagan joined Justice Alito’s dissent that began: “The doctrine of stare decisis gets rough treatment in today’s decision.” In Alito’s majority opinion in Callais, he wrote that Kagan’s dissent “wraps itself in the mantle of stare decisis,” but “is unabashedly at war with key precedents.” Alito emphasized Kagan’s hypocrisy, which he himself undoubtedly encouraged behind closed doors in cases like Ramos, to justify his own more hideous and shameless self-destroying hypocrisy.

Here is where Milton seems to throw up his hands and say, wow, these people are blind to their own contradictions. Perhaps all are hypocrites, and none may be spared this cancer of the mind. Or, maybe Milton was describing how Satan does his work so well, by playing on blind spots humanity purposely maintains for its own reasons.¹

The fight over who is more hypocritical, Alito or Kagan, seems to be a race to the bottom instigated by those who want to maximize the Court’s self-degradation. Justice Gorsuch threw fuel upon this fire in Learning Resources, Inc. v. Trump (the Tariffs Case), where he wrote a concurrence that seemed to run roughshod over every other colleague he has on the bench. In that case, Kagan pushed for more judicial power to review major questions according to ordinary tools of statutory interpretation, while Alito joined Kavanaugh’s opinion that apparently would use major questions doctrine to fortify what appears to be Presidential overreach in a way that seems to directly contradict their previous decision in West Virginia v. EPA.

Major questions doctrine itself is a new line of precedent that appears to stave off a complete eclipse of judicial power to review especially controversial actions of the President. According to secret Supreme Court memos leaked by the New York Times, it appears that Chief Justice Roberts masterminded this basis for review whenever he felt that the dignity of the Court itself is challenged by the President. At the same time, Roberts’ decisive use of the shadow docket to expand major questions jurisdiction on an ad hoc basis rather than to enforce the decisions the Court already made in its merits docket seems to be candidly political in itself and a potentially unreviewable violation of the Due Process Clause.

In the past, law students were taught that no Court would ever act so unreasonably. We were told that if there were any holes in the judicial structure, the reasonableness of judges could be counted upon to avoid any real damage to the institution. Under America’s almost religious faith in judicial reason, Presidential and Judicial overreach spiked according to unitary theories of federal power that presumed each branch of government has no duty of loyalty to the other branches whatsoever.

Yet, hypocrisy is anything but invisible in this storm of constitutional controversy. The real contrast in judicial character that materializes out of these dealings is between common law lawyers and legal positivists. Those crying most loudly about hypocrisy tend to be legal positivists who are trying to position themselves to grab power,² which appears to be why Alito and Kagan seem to be constantly at each other’s throats over who is more hypocritical about their application of stare decisis.

However, for the common law lawyers, stare decisis has its place in a greater context of common law maxims and principles. The common law lawyer’s perspective is indispensable where stare decisis becomes completely inverted as in Dobbs, which extended Janus as an anti-precedent precedent rather than keeping Janus a one-and-done ad hoc decision. Of course Dobbs needs to be overruled, but it needs to be overruled to protect and revive the common law, which would not require the Court to spite stare decisis when it overrules Dobbs.

Legal positivism, which is the idea that all law is man-made, is designed to maximize the law’s potential by throwing away all constraints that judge’s anciently put upon the laws, including stare decisis.³ When Justice Kagan tried to stabilize legal positivism by supercharging stare decisis in the context of statutory (i.e., man-made) authority, she necessarily lost the common law context in which stare decisis exists. Kagan’s ceding of a legal positivist ‘anything goes’ framework actually facilitated Dobbs and the general degradation of stare decisis by making the common law seem as though it were only another version of man-made law so that judge-made ad hocery could be extended through it in Dobbs as though the common law could be anti-common law.

In other words, the hypocrisy at the bottom of Kagan and Alito’s hideous embrace of each other in Ramos⁴ was that both Kagan and Alito disrespected the common law context of stare decisis. For common law lawyers, stare decisis cannot be an ad hocery governed by passing Mathews v. Eldridge balancing tests, but its principles of judicial stability and fairness necessitate the overruling of certain precedents from time to time — especially those that degrade the common law and stare decisis itself. It is not hard to find the cases that the Court should overrule according to the common law’s principles of stability and fairness as they tend to stick out in what some scholars call The Anticanon.

Several antebellum cases that caused the Civil War should be explicitly overruled, including Dred Scott v. Sandford and Prigg v. Pennyslvania. Overruling these cases should inspire the subsequent overruling of the Slaughter-House Cases and many other cases in Slaughter-House’s progeny, including Bradwell v. Illinois and Plessy v. Ferguson. Justice Holmes’ decision in Buck v. Bell should explicitly be overruled along with its progeny of ad hoc cost benefit balancing cases including Mathews v. Eldridge, Stone v. Powell, and United States v. Brignoni-Ponce.

All these legal changes can be done by overruling precedent, as the Court did to Bowers v. Hardwick and Olmstead v. United States, according to principles of fairness and justice that stare decisis supports. Those shouting about hypocrisy tend to opine about how stare decisis is not a suicide pact, but characterizing the citation of stare decisis as a potential decision to self-harm is a fallacious argument appealing to emotions and making a straw man, apparently to justify a complete departure from the common law. For judges who overrule cases can and should justify themselves according to the underlying common law principles of stare decisis, not by giving reasons for exiting common law adjudication altogether.

Again, Ramos provides the proper lens to expose Kagan and Alito as contrarian siblings in hypocrisy, appearing to defend a very similar position of legal positivism while disputing the results. Ramos was about the common law requirement of a jury. In Apodaca v. Oregon, the Court departed from this common law requirement according to the democratic ideal that a people of a State can decide their own way and depart from common law at will.

In order to return the Court to stare decisis, and away from man-made efforts to modulate or depart from the common law, the Ramos Court overruled Apodaca. Clearly, Ramos invoked common law requirements mandated by the U.S. Constitution to overrule Apodaca, which means that man-made efforts to secure the common law in the U.S. Constitution have a central, preemptive place in the U.S. system of law. However, public participation in the choice to have a common law system does not paradoxically make the U.S. system anti-common law as legal positivists seem to infer.

The common law calculus at work in Ramos was not arbitrary. It did not allow for the ad hocery of Janus to upend abortion rights, which was emphasized in Dobbs’ reliance on Justice Kavanaugh’s Ramos concurrence. Justice Gorsuch’s common law based overruling of Apodaca in Ramos was not extended in Dobbs, because Dobbs did not overrule Roe v. Wade in order to return to the common law. Rather, Kavanaugh’s balancing test taken from Janus in Ramos was a further departure from common law into arbitrary ad hoc decision making that Justice Powell was most known for developing post-Buck in Mathews and beyond.

Justice Gorsuch’s hypocrisy was not invisible either. He both decried and applied balancing tests. All the defenders of Casey v. Planned Parenthood and Roe v. Wade’s use of balancing tests land in the same hypocrisy that began when Buck v. Bell extended Jacobson v. Massachusetts to sterilize women against their will. Justice O’Connor tried to defend it in her University of San Diego article that praised Justice Holmes’s Hegelian contradictions, but Holmes is no longer as defensible as he once seemed.⁵

But a common law lawyer, like myself, can follow the writings of Suffragette Matilda Joslyn Gage to find the common thread in the rights of life defended by Lord Coke in an earlier time to avoid hypocrisy.⁶ The former Puritans, including Rhode Island founder Anne Hutchinson, liberally used abortifacients to “bring back the menses” that are now being decried as if they were tools of murder by the current Puritans of America.⁷ Their arbitrariness is written throughout history, in one place making progress, and in another hanging witches and murdering Pequots.

John Milton was a Puritan, and he thought hypocrisy was invisible. Perhaps, as Octavio Paz would later observe in Mexico,⁸ there was something in the positivist way the Puritans defined the law that blinded them to their own contradictions.⁹ But to those who were and are oppressed by them, and to any who reject their man-made attempts to be God through sheer willpower, their hypocrisy is clear.¹⁰

But this is not the end of the story, because Anne Hutchinson and Roger Williams escaped from Puritan Massachusetts with their followers to found Rhode Island on principles of freedom of religion and speech that would later be codified in the First Amendment. Standing upon these freedoms of mind, Phillis Wheatley disagreed with Milton’s hypocritical misogyny, but still claimed the platform Milton made for women to say what she wanted to say instead. Thus, she baptized her lips, in the words of Lauryn Hill, by mimicking Milton’s style and accepting his terms while remaking and renewing every meaning he intended until all women were made as equals with men, especially regarding the freedom of their minds.¹¹

Thus, I must add, that where Kagan and Alito err as Milton erred, I do not seek their destruction,¹² but only to re-say their words in baptized form so that they actually support the common law. They both still appear to defend stare decisis even as their character betrays a lack of common law devotion. So it may be wise to do as Wheatley would do and take their defenses of stare decisis as permission to continue expounding the common law.

Wheatley’s progeny of artists and survivors in America have developed a complex strategy of double-speaking back to bad men. The latest, best example of how this strategy can be deployed successfully in Court was Kesha Sebert’s ringing success in the highest Court of New York in her case against her alleged abuser Dr. Luke. Despite several complications and difficulties, Kesha managed to separate herself from Dr. Luke and remade herself like a phoenix from the ashes.

Such an artist turns the hypocrisies of their abusers into a canvas she exploits for her own benefit. This strategy is not hypocrisy, but it may be one of the reasons Milton felt as though hypocrisy walks invisible. Since survivors are left to piece together the artificial binaries that broke the minds of their oppressors, black and white, man and woman, their answers back to hypocrisy can be taken as a ceding of ground even as they are standing their ground.

The fights legal positivists have between themselves over power will fall away eventually. What matters is what we do with the rubble they leave behind after their rage and despair is spent. It is not hypocrisy to expound the concepts hypocrites developed previously by baptizing your lips in Wheatley’s style, and it is not two-faced to speak back double-voiced to a two-faced system run by some of the most hypocritical people in the land.¹³

No. It is courage in the face of adversity to speak in the twisted words of your adversary. It is being the rose that grew from concrete. So let us imagine anew our roots sinking deep into the most impossible hard places in American society to create timeless beauty. And let us draw consolation from the poet’s marvelous verse that hails our existence here, in these very times and among these very people: “Long live the rose that grew from concrete when no one else ever cared.”

Yours Cordially,

Joshua J. Schroeder, Esq.

1. See generally Michael Lewis, The Undoing Project (2016).

2. Joshua J. Schroeder, A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism, 29 Cardozo J. Equal Rights & Social Justice 663, 712 (2023) (noting how legal positivists tend to compete with each other over control of the proverbial rostrum where new legal terms can be memed and test ballooned).

3. Id. at 665-66 (noting that legal positivism “cannot be reliably defined,” because one of its central goals seems to be “to inject maximum imaginary force into a legal system,” and, thereby “facilitat[ing] a potentially unlimited number of imaginary experiments”).

4. Cf. C.S. Lewis, That Hideous Strength 298-99 (1940) (“[W]ith [a] sudden, swift convulsive movement, the two old men lurched forward toward each other and sat swaying to and fro, locked in an embrace from which each seemed to be struggling to escape. And as they swayed and scrabbled with hand and nail, there arose, shrill and faint at first, but then louder and louder, a cackling noise that seemed in the end rather an animal than a senile parody of laughter.”).

5. See Joshua J. Schroeder, The Dark Side of Due Process: Part I, A Hard Look at Penumbral Rights and Cost/Benefit Balancing Tests, 53 St. Mary’s L.J. 323, 339 (2022) (noting the unlikely and strained nature of Justice Holmses’ ideas in the law).

6. See Joshua J. Schroeder, Rethinking Rights in a Disappearing Penumbra: How to Expand Upon Reproductive Rights in Court After Dobbs, 54 N.M. L. Rev. 15, 66 (2024).

7. Id. at 23.

8. Octavio Paz, The Labyrinth of Solitude 132 (Lysander Kemp trans., 1961) (“The positivist disguise was not intended to deceive the people but to hide the moral nakedness of the regime from its own leaders and beneficiaries.”).

9. Austin Woolrych, Commonwealth to Protectorate 271-73, 300 (1982) (noting the apparent invention of legal positivism by the American Puritans).

10. Letters of Roger Williams. 1632-1862. at 346 (John Russell Bartlett ed., 1874) (“Yourselves pretend liberty of conscience, but alas! it is but self, the great god self, only to yourselves.”).

11. Karla V. Zelaya, Sweat the Technique: Visible-izing Praxis Through Mimicry in Phillis Wheatley’s “On Being Brought from Africa to America” at 51, Doctoral Dissertation Submitted to the Graduate School of the University of Massachusetts Amherst (2015).

12. Letter from Phillis Wheatley to Samson Occom (Mar. 11, 1774) (“This I desire not for their Hurt, but to convince them of the strange Absurdity of their Conduct whose Words and Actions are so diametrically, opposite.”).

13. Id. at 54 (“Mimicry allowed Wheatley to speak double-voiced and double-languaged.”)