William & Mary Bill of Rights Journal


Eric Berger


Constitutional law scholarship often focuses on two taxonomies: doctrinal categories and interpretive methodologies. Consequently, constitutional scholars sometimes neglect other important facets of constitutional decisionmaking, particularly extra-doctrinal stealth determinations that courts render frequently in constitutional opinions. The U.S. Supreme Court regularly confronts the questions underlying these determinations, but despite their centrality to constitutional decisionmaking, these issues often escape careful scrutiny.

Lawrence v. Texas exemplifies the phenomenon. Lawrence framed its central question at a broad level of generality; relied on hybrid reasoning, using equal-protection rationales to support a substantive due process holding; declined to identify a level of scrutiny; and invoked changing public opinion. Each of these moves helped the Court reach its outcome, but, significantly, the Court inadequately theorized each, leaving considerable doubt about how it would approach similar inquiries in future cases. The result is legal uncertainty. For example, cases challenging the constitutionality of state same-sex marriage bans will likely confront many of the same sub-doctrinal determinations that Lawrence purported to resolve. However, because Lawrence did so little to justify its resolution of those determinations, the Court has little to guide it when confronting those determinations again in a marriage case—or any case.

Such opacity threatens judicial transparency, consistency, and predictability. That being said, stealth determinations, paradoxically, also can help reinforce judicial legitimacy by accounting for cultural norms and providing the Court with flexibility while still preserving the appearance of impartiality. Stealth determinations, then, can simultaneously undermine and fortify judicial legitimacy, thus reflecting deep tensions in the Court’s approach to constitutional adjudication.