The Art of Harm Amelioration

Honoring constitutional stature and ameliorating harms inherent in losing a rights dispute requires more from justices than a mere refusal to attack constitutional stature. Honoring constitutional stature requires affirmative acts. The previous chapter argued that justices might consider writing opinions containing the elements of a valid apology if they wish to honor losers' constitutional stature and ameliorate the harms done to them. This chapter sets forth four specific recommendations compatible with that argument. The first recommendation is that justices abandon the convention of relying on dissenting opinions to explain fully losers' interests and values. A second recommendation is that justices must accept responsibility for inflicting harm on constitutional losers. A third recommendation, which is closely related to the second, is that justices should convey humility in their opinions. Finally, opinions capable of restoring a proper relationship between justices and constitutional losers who suffer harm must be written with an understanding that language has the power not only to persuade but also to cause harm. Thus, justices should not only use words precisely and with an understanding of their nuances; they should also know how to speak in a manner suited to their relationship with and obligations to citizen stakeholders in rights disputes.