BYU Law Review


Though judges often portray themselves as helpless to alter case outcomes dictated by law, this is mostly false humility. Judges are illusionists, and their opinions sleights of hand which obscure that they participate in creating what they purport merely to apply. This is especially the case in the Supreme Court, from which there is no appeal. The Justices perform the law, and their opinions are the records of these performances.Performance theory supplies a better means of analyzing Supreme Court decisions than ubiquitous and wearisome attacks on judicial integrity. The Court has its precedents, but they have no connection to a pre-existing natural order, and often not even to a determinate text. The Court’s readings of its precedents form a tradition that is rarely so fixed as to yield only one possible result in every case. This makes the Court’s constitutional decision-making the purest of performances—holdings and citations are “iterated,” shorn from their original contexts and dropped into new ones, creating new and surprising principles that masquerade as old and established. It is unhelpful to call this dishonest. The Justices cannot admit their performative role because it cannot be reconciled with still-powerful higher-law and rule-of-law myths. The necessity of performing constitutional law stems from the general absence of a single authoritative text that can constrain that performance; there are, instead, multiple interpretive possibilities, which makes performance inevitable. The Justices are always working without a net, performing constitutional law in opinions with nothing beneath them.


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