The U.S. Supreme Court customarily issues its most closely watched and emotionally charged decisions during the last few weeks in June.
This June will likely be no exception, as the Supreme Court is expected to rule on issues including the constitutionality of race-conscious college admissions policies, the scope of an employer’s obligation to accommodate a worker’s religious practices, the permissibility of a website designer’s refusal to create a wedding website for same-sex couples because of her religious beliefs, and the legality of President Joe Biden’s student loan forgiveness plan.
Given the nature of the rights asserted and the policy implications at stake, the reaction to these Supreme Court decisions is likely to be intensely polarized.
Why civil discourse matters for lawyers
“Americans today live in one of the most polarized eras in our nation’s history,” according to the 2022 Civics for Adults: A Guide for Civics Content Providers report issued by the Center for Strategic and International Studies (CSIS) and the Annenberg Public Policy Center. “[P]olls show that many Americans are losing faith in U.S. institutions of governance, their fellow Americans, and perhaps in democracy itself.”
As the Illinois Supreme Court emphasized in the Illinois Rules of Professional Conduct, lawyers are “public citizens” who should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” (See Ill. Rules of Prof’l Cond., Preamble, ¶, 6.)
The CSIS Civics for Adults report highlights the role civil discourse can play in decreasing polarization and increasing Americans’ confidence in its institutions and each other.
“Conversations about shared values or shared aspirations for government (e.g., government should treat everyone fairly regardless of wealth or power) can help establish some common ground upon which to build through civil discourse,” the report says.
Strategies for civil discourse regarding Supreme Court decisions
Given the stakes for civil discourse and democracy, below are strategies lawyers can use to advance thoughtful, informed, and respectful dialogue around the upcoming Supreme Court decisions and other highly contentious issues.
1. Read and reference the opinions
Lawyers are expected to read cases they cite in pleadings and should embrace a similar approach when discussing newly issued Supreme Court decisions.
While lawyers will undoubtedly have initial reactions to the holdings, reading the majority opinion, along with any concurrences and dissents, will help ensure the way you discuss the opinion is accurate, accounts for limiting principles and relevant nuances, and properly frames potential implications.
Referencing the specific arguments made in the decision will provide a reasoned foundation for your opinions—whatever they may be—and establish a common starting point for your dialogue with others.
2. Do not create “straw-man” arguments
When discussing contentious issues, some people mischaracterize or create a caricature of a position with which they disagree. They then respond to this distorted and often weaker version of the position rather than the actual argument.
This straw-man fallacy not only impedes constructive dialogue but is an inflammatory and bad-faith way of engaging other people.
Instead, lawyers should endeavor to operate according to what several philosophers have termed the “principle of charity.” This principle asks that people interpret opposing positions in the most rational manner possible and base their response on a favorable or charitable framing of that position.
This principle is not intended to persuade you of the merits of an opposing position but rather to ensure you are responding to a fair characterization of it.
Whether you are discussing a Supreme Court decision or responding to someone’s reaction to it, utilizing the principle of charity will help lawyers foster good faith dialogue and minimize the likelihood of incivility.
3. Be empathetic to those most impacted
While Supreme Court decisions often have wide-reaching effects, they do not impact everyone’s lives, expectations, and rights in the same way.
Rather, depending on the case and circumstances, some people will experience the impact of a decision more quickly or concretely, whether through expanded or abridged opportunities or a sense of feeling affirmed or devalued.
As such, when discussing a newly issued Supreme Court decision, think about the audience you are communicating with and try to understand how the decision may have engendered hopes, fears, and uncertainties in them.
Even if this does not alter your opinion of the decision or you believe certain feelings are invalid, intentionally exercising empathy will help you discuss the decision with more compassion and grace.
4. Reject ad hominem attacks
Robust debate regarding Supreme Court decisions is an integral part of a healthy democracy and should not be discouraged. What should be discouraged, however, are personal attacks on people as opposed to principled disagreement with positions.
Calling people vicious names or slurs, publicly wishing harm upon them and their families, or accusing others of intentionally trying to cause damage are tactics commonly used in modern public debate, especially on social media.
Not only are such tactics unlikely to engage or persuade, but if lawyers deploy them, they will arguably undermine their previously discussed role as a “public citizen” with an obligation to “further the public’s understanding of and confidence in the rule of law and the justice system” (See Ill. Rules of Prof’l Cond., Preamble, ¶, 6.)
Whether communicating with colleagues in the office or strangers on social media, commit to winsomely expressing your opinion on the relevant legal issues as opposed to disparaging or dehumanizing other people.
Use communication to build bridges
So, as the Supreme Court issues what are likely to be blockbuster decisions at the end of June, lawyers must decide whether to deploy language that further fractures and polarizes our communities or builds bridges with others through civility and good faith engagement.
Not only does a lawyer’s role of public citizen and community leader require it, but the strength of our democracy may depend on it.
Staying up to date on issues impacting the legal profession is vital to your success. Subscribe here to get the Commission’s weekly news delivered to your inbox.
“Communicating During Conflict: Understanding Your Role” CLE