The Supreme Court appears in traditional legal literature as a font of dispassionate legal analysis. Yet two recent controversial decisions reveal its reliance on powerful metaphors to justify opinions.
In Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), the Court held that corporations, for purposes of First Amendment free speech protection, were individuals, and that their financial expenditures were protect speech. The use of these two metaphors (corporations-are-individuals, money-is-speech) dissolved the restrictions of campaign finance laws and allowed the unlimited use of corporate funds in elections.
National Federation of Independent Business v. Sebelius, 567 US__(2012) dealt with the Patient Protection and Affordable Health Care Act. The opinions surrounding Court’s decision used metaphors to powerful effect. Justice Roberts suggested that the Congress’ constitutional power to regulate interstate commerce permitted it to regulate economic activity but not economic inactivity–to constrain commercial actions that existed, but not to compel them if they did not. The operative metaphor here is commerce-is-action.
The opinions in the case deal extensively with the question of whether the Constitution’s interstate commerce clause would permit the Congress to require individuals to buy products other than healthcare, for example broccoli. The operative metaphor here is healthcare-is-broccoli.
A majority of 5 members of the Court (Alito, Kennedy, Roberts, Scalia, Thomas) combined these two metaphors to conclude that Congress could not compel individuals to buy healthcare. If inaction was not commerce, Congress could not compel those who had not acted to buy healthcare to buy it. If healthcare was broccoli, Congress could no more compel consumers to buy healthcare than it could force them to buy broccoli.
Everyday metaphors permeate legal analysis. They drive the legal cognition that underlies legal reasoning. They inform a rhetoric of legal rationalization. The Supreme Court, like other institutions, reflects and constructs a powerfully metaphorical law and politics.