Rhetoric and Discourse in Supreme Court Oral Arguments

Sensemaking in Judicial Decisions

Ryan Malphurs

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415640046
• eBook ISBN: 9781136182297
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Communication Studies
• Index: Languages & Linguistics

While legal scholars, psychologists, and political scientists commonly voice their skepticism over the influence oral arguments have on the Court's voting pattern, this book offers a contrarian position focused on close scrutiny of the justices' communication within oral arguments. Malphurs examines the rhetoric, discourse, and subsequent decision-making within the oral arguments for significant Supreme Court cases, visiting their potential power and danger and revealing the rich dynamic nature of the justices' interactions among themselves and the advocates. In addition to offering advancements in scholars' understanding of oral arguments, this study introduces Sensemaking as an alternative to rational decision-making in Supreme Court arguments, suggesting a new model of judicial decision-making to account for the communication within oral arguments that underscores a glaring irony surrounding the bulk of related research—the willingness of scholars to criticize oral arguments but their unwillingness to study this communication. With the growing accessibility of the Court's oral arguments and the inevitable introduction of television cameras in the courtroom, this book offers new theoretical and methodological perspectives at a time when scholars across the fields of communication, law, psychology, and political science will direct even greater attention and scrutiny toward the Supreme Court.

1    A Letter to the Chief Justice of the United States

I think it is extraordinary these days the tremendous disconnect between the legal academy and the legal profession. … They occupy two different universes. What the academy is doing is of no particular use to people who practice law.

—Chief Justice John G. Roberts¹

Dear Mr. Chief Justice,

I have written this book for you. I am sure you would agree that there is a certain irony surrounding an entire book directed towards a single individual—it certainly is not a wise tactic to boost sales. But my research in this book will have the greatest impact upon the Court if you take seriously some of my findings, and then seek to correct the communication imbalance between the justices and advocates at oral argument. At a minimum, shifting away from the Court’s current rapid-fire style will allow audiences to appreciate the serious consideration and measured justice with which the Court scrutinizes each case. Currently, the justices’ brusque exchanges suggest to audience members that a justice has already made up his or her mind and rapid echanges prevent an advocate from fairly articulating his or her case. While advocates, judges, and legal scholars will find unique insights and beneficial suggestions within this study, as Chief Justice, you have the ability to influence directly the communication between advocates and justices.

I have witnessed you occasionally play umpire on the bench: preventing justices from asking questions to allow an advocate to finish a response, redirecting advocates to a justice’s interrupted line of questioning, and allowing advocates to remain longer than the scheduled argument time. But as an umpire, I have also observed areas in which your play-calling falls short: ending oral argument before questions have been resolved, engaging in one-sided scrutiny of a party, and allowing your colleagues’ questioning to prevent an advocate from fully articulating his or her case. Your substantial power within the persuasive environment of oral argument can greatly affect the manner in which other justices understand and evaluate a case. Frequently in oral argument, justices who dominate the interaction may prevent less active justices from posing important questions to advocates, preventing the less active justice from having his or her questions answered. Your handling of oral argument should ensure the opportunity for each justice to have his or her questions properly answered by the advocate. We should expect oral argument to be a site where all the justices may have important lingering questions resolved by advocates. Even more so, it should be a place where the advocates may have the opportunity to fully articulate their arguments without persistent interruptions by the justices. Oral arguments should reflect a balanced and fair treatment for advocates on each side, particularly because the public observers, upon which the Court’s authority rests, should respect the equal attention and care the Court gives to every case and each advocate.

Let there be no doubt that I believe the Court approaches each case with the intention of handling the case in an impartial manner, but what plays out in front of the public through the Court’s treatment of advocates portrays a very different picture. Worse still, as my research will show, communication within oral argument may actually prevent a justice from impartially considering a case. These two dangers compromise the integrity of the Court’s oral argument and the justices’ decision-making ability.

You may be thinking that vigorous argument does not often occur in all cases. And it is true that some of the Court’s cases prompt greater interaction from justices than others. Cases that foster vigorous and sometimes unbalanced interactions tend to have attracted significant social and political attention in their evolution toward the Court. Ironically, these significant social and political cases require the most careful and balanced scrutiny both because of the public’s interest in the case, as well as the larger reaching social implications of the Court’s decision. Imbalanced and vigorous communication in oral argument can compromise the public’s perception of the Court’s consideration and detrimentally impact the justices’ decision-making ability. The people have a right to expect balanced consideration of both sides of a case and careful decision-making, particularly when the Court’s decision will have a wide-reaching impact upon the American people.

In the past, I realize oral argument has been characterized as a dialogue among the justices, but this singular purpose overlooks the many aims each justice, advocate, and audience member brings to the case. Within dialogues, each participant may have multiple goals, and one can imagine that with nine justices and two or more advocates, at the very least a multiplicity of purposes exists. This book will describe a number of participants’ intents that can be found in oral argument, many of which you are already aware. As an important component of the justices’ decision-making process, of an advocate’s representation of a case, and of the public’s regard for the Court, oral argument requires that you strictly manage the communication between justices and advocates.

Your charge at the opening of this work suggests the impractical nature of the Academy’s research. Admittedly, not all legal scholars design research to contribute pragmatically to the practice of law, but many do, and these scholars often face disparagement by public officials who ignore their rich and applicable scholarship. We must not ignore each other. I have attempted to capture and lay forth the complex dynamics found within oral argument in a manner that reveals the serious and influential nature these arguments play in the judicial decision-making process. I hope you find my own research both intriguing and practical in your approach to oral arguments. And to those advocates, judges, law students, or legal scholars, reading at this time, I also hope that you discover useful information, because this study acts as both a contribution to the diverse realm of legal studies, and a collection of pragmatic suggestions for practitioners based upon my research.

At its essence, this study considers the potential implications of the rhetorical discursive interactions within oral arguments. If you believe in the power of words and communication’s ability to influence how others think and behave, then the manner in which advocates and justices communicate in the courtroom is critically important to the Justice rendered by the Court. This study neither seeks the definitive proof of a theory, nor claims the justices behave in a particular manner across all oral arguments. To make such claims would ignore the Court’s intellectual diversity among the justices. Instead, this study applies a theory and method to reach reasonable conclusions that resonate with my observations of nearly 100 oral arguments.

My task in the upcoming chapters is to present you with compelling evidence of communication’s dynamic importance and explain why controlling communication in oral arguments at the Supreme Court or any courtroom is essential to fair proceedings, impartial consideration of cases, and ultimately, the Justice handed down by the courts. If after having evaluated this research you may enact changes to the current environment of oral argument, then I will have considered my research a success and made a small contribution to the improvement of Justice within our great country.

Of course the research’s influential nature depends upon its own persuasiveness, so without further ado, “Mr. Chief Justice and may it please the Court. …”

2 Historical Development of Legal Rhetoric and Supreme Court Oral Arguments

Before addressing my research’s goals, readers will find it useful to step back and consider the origins of Supreme Court oral argument. While historically rhetoric¹ and law have been intimately connected, and are often referred to as “legal rhetoric,”² the Supreme Court’s modern day oral argument has been the result of developments in the legal field spanning thousands of years through a Western legal tradition. As an institution, the Supreme Court resulted from thousands of years of Western legal tradition. On the walls of the Supreme Court’s courtroom, friezes depict figures of Hammurabi, Moses, Justinian, and Muhammad in recognition of their historical contribution to law that led to the foundation of the Supreme Court.

The Court’s Greco-Roman architecture reflects its debt to Greek and Roman culture, the birthplace of two legal traditions that dominate American, British, and European conceptions of law. Ideologically, Greek and Roman cultural traditions serve as the foundation for the American legal system. Greeks understood law as a process conferring general benefits to the people, which served as a mediating force between humans of equal status.³ Two forms of justice existed within Greek society. Deliberative justice was established by legislators, while corrective justice was handed down by juries and judges, similar to our own justice system.

Both forms of justice rested on a social contract between the state and individual, morally obligating citizens to follow the state’s laws and take an active participatory role in Greek civic life. Scholar J.M. Kelly suggests that the Greek’s concept of social contract “foreshadowed the most pervasive and most fruitful of European political and legal theories” through Locke’s own expansion upon “the idea that submission to government and law, the fundamental civic duty, rests on supposed agreement to which the individual citizen remains by implication a party.”⁴ To successfully traverse the relationship between individual and government in Greek life, citizens studied rhetoric for the public speaking roles with which they were expected to engage. Knowledge of legal rhetorical principles proved crucial as Greek citizens represented and argued their positions before juries and judges who served as mediators and governor.

The active role legal rhetoric played in Greek life elevated the importance of its development, particularly because everyone was subject to the law under the Greek’s conception of “due process.” Through due process, every person, even rulers, were subject to the rule of law, and these laws articulated specific procedures that were guaranteed to citizens as a way of obtaining justice for society. Thus all citizens required an ability and skill to present their cases. The egalitarian approach to the development of justice and laws drew the Greek’s attention to the equity and flexibility of laws—or what legal scholars now refer to as the division between “the letter” and “the spirit” of the law.

Interpreting laws within social contexts raised questions about the role of punishment. Punishment required a consideration of the transgressor’s intent and whether punishment should be corrective or a form of deterrence. But in order to understand what form of punishment should be prescribed, Greeks believed that both sides of a case should be heard. The Greeks first established and articulated ideas of what we now know as “due process of law.” Within Greek society, legal rhetoric informed contemporary understandings of our own justice system, such as our right to due process, debates about the letter or spirit of the law, the purpose and application of punishment, as well as the tradition of hearing both sides of a case.⁵

Aristotle believed that knowledge of legal rhetoric was essential to Greek life. His work On Rhetoric provides a variety of legal arguments that speakers may employ in a variety of situations, and he understood legal rhetoric to be concerned primarily with a person’s guilt or innocence in a previous event. For Aristotle, law formed and shaped the state’s virtues, which in turn cultivated the individuals’ morals. Legal rhetoric was employed to mediate the interaction among individuals and the relationship between individuals and the state. An individual’s actions, Aristotle theorized, could be classified as just or unjust based the law and those affected. He divided laws into those that were “universal” or natural laws and laws that were “particular” or state based. Universal laws articulated behavior that all humans should follow and pervaded all civilizations. Particular laws varied between states and were unique to that culture or society. Aristotle also identified that both a community and an individual could harm through injustice, and that the severity of an action, and thus the punishment, could vary depending on the circumstances of harm. His teachings provide the first systematic exploration of legal rhetoric, painting a noble and practical picture of an art form he felt was essential to Greek life.

Building on Aristotle’s conceptions and Greek laws, the Romans contributed a great deal to the development of laws and legal rhetoric, largely by establishing the lawyer as a legal profession. While Greek laws derived from philosophical considerations of the role of law and justice, Romans approached the law with more pragmatic considerations, exempting rulers from following laws, using legislators to establish laws, and relying on praetors or judges to determine how laws should be applied. According to H. Patrick Glenn’s Legal Traditions of the World, Roman law provided a “governance of complex personal relationships,” eventually becoming “an object of admiration,” which other nations adopted.⁶ Romans’ concern with practical matters contributed to our own development of contract law in areas such as private ownership, trusts, mortgages, bailment, leases, partnerships, and liability. The Romans’ systematic approach to laws resulted in the compilation of the “12 Statues” which codified pre-existing traditions within Roman culture. The 12 Statues provided all citizens with a basis of appropriate conduct and served as the first example of codified law which would later inform the Napoleonic Code and provide the foundation for Europe’s Civil Law legal system. In addition to these substantial contributions, the emperor Justinian compiled a list of judicial opinions to guide judges in their interpretation and application of laws, creating one of the first compendiums of legal jurisprudence.

Roman scholars Cicero and Quintilian largely expanded on Aristotle’s conceptions of legal rhetoric, but with their own unique contributions. Cicero expanded legal rhetoric’s audience by inscribing his own legal theory for distribution, facilitating the sharing of ideas and exposing new audiences to legal theory. Quintilian emphasized the ideal nature of law and its transformative ability by which the just man could restore justice and prominence to his country. Quintilian’s optimistic view of legal rhetoric likely arose from the chaotic environment in Rome that resulted from the rise and fall of six emperors. Rome’s tumult, at this time, caused even greater disorder in Roman territories where conquered peoples were suddenly left without the guiding principles of the Roman Empire and were forced to establish their own laws.⁷

In England, the Norman invasion spawned what we now consider the Common Law system; since ruling nobles were forced to develop a judicial system to maintain order in local populations. Nobles appointed judges to be responsible for maintaining order and jurisdiction, while juries composed of townspeople determined the judgment and sentence of fellow transgressors. Soon local advocates began relying on juries’ previous decisions to establish precedent as a persuasive means of ruling in a case. Successful advocates would often draw on juries’ rulings from other towns to persuade juries to follow a similar ruling.

David Frederick’s Supreme Court and Appellate Advocacy traces the evolution of the Court from its common law origins. In 1791, significant “uncertainty among practitioners” resulted from the Court’s early position on oral argument, which caused the Court to issue a statement noting “that this court considers the practice of the courts of King’s bench, and of chancery in England, as affording outlines for practice of this court; and that they will from time to time, make such alterations therein as circumstances may render necessary.”⁸ It is not difficult to see the overlaps in the American judicial system developed from patterns established by Norman nobles.⁹ The Supreme Court of the United States bears clear connections to Greek, Roman, and English legal traditions through its reliance on a common law tradition that seeks to interpret legal codes established by legislatures and states. However, the rhetorical art of Supreme Court oral arguments has shifted dramatically from the artful and poignant days of Daniel Webster’s arguments to the current intellectual whirlwind marked by a flurry of thrusts and parries.¹⁰

DEVELOPMENT OF ORAL ARGUMENT: TRANSITIONING FROM ORALITY TO WRITTEN ARGUMENTS

Over the past 200 ...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Dedication
• Contents
• List of Figures
• List of Tables
• Preface
• Acknowledgments
• 1 A Letter to the Chief Justice of the United States
• 2 Historical Development of Legal Rhetoric and Supreme Court Oral Arguments
• 3 Do Oral Arguments before the Supreme Court Matter? A Simple Explanation
• 4 New Question: Oral Arguments “Matter,” But How Do We Make Sense of Them? A Modest Proposal
• 5 Critical Theories and Research Questions: Proposing a Method to Capture the Madness of Oral Arguments
• 6 The Many Faces of Oral Argument: Oral Argument’s Purposes and the Justices’ Styles
• 7 Arguing about “Bong Hits 4 Jesus”: Testing Theory and Method in Morse v. Frederick
• 8 Making Sense of Child Rapists in Kennedy v. Louisiana: A Firsthand Observation
• 9 Historical Repercussions of Judicial Sensemaking: District of Columbia v. Dick Anthony Heller
• 10 The Ground Covered and New Ground to Uncover: Responding to Critics, Offering Recommendations, and a Final Letter to the Chief Justice
• 11 Biased Sensemaking: Compromising the Court’s Rhetorical Authority
• Notes
• References
• Index