The Dialogic Rhetoric of the Supreme Court: An Interdisciplinary Analysis

Abstract

A lawyer and a rhetorician pose and endeavor to answer from two perspectives the following question: How has the United States Supreme Court managed to endure and to maintain legitimacy for over two hundred years, given the potentially destabilizing cases it has had to decide? In this exploratory, interdisciplinary essay, the lawyer first examines the way the Court has been grounded, historically, in a common-law tradition and how its reliance on stare decisis seems to be amenable to most Americans. The rhetorician continues the exploration by linking the Court's common-law practice to issues of interpretive power, ethos, dialogism, and pragmatic philosophy and practice.

Notes

¹The authors wish to express their gratitude to their RR reviewers, Hugh Burns and Omar Swartz, whose feedback proved to be invaluable during the revising and editing of the manuscript.

²The Supreme Court had ruled in Cherokee Nation v. Georgia, 30 U.S. 1 (1831) that Indian tribes were wards of the United States and therefore the states had no power over their lives or property. After the executive refused to enforce the decision, Georgia proceeded to eject the Cherokees from the state, an action that led to the Trail of Tears.

³A legislator need not show that his vote is consistent with anything. But a judge very rarely assumes that degree of independence and tries to justify the present decision from decisions by others in the past (See Ronald Dworkin, Taking Rights Seriously, 112).

⁴See, for example, Michael Stokes Paulsen, “Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?”

⁵This is another way of expressing the earlier claim that the American political and legal systems are reciprocal and integrated.

⁶ Southern Pacific Co. v. Jensen, 244 U. S. 205, 221 (1917, Holmes J. dissenting).

⁷William E. Nelson, in Americanization of the Common-law: The Impact of Legal Change on Massachusetts Society, 1760–1830, concludes that “[n]ot only were men beginning [as of 1830] to realize the inevitability of change, but they were also beginning to see that the direction of change was a matter of choice among competing policies rather than deduction from shared principles” (172).

⁸Cappalli, 95–96: “The pervasive rhetoric of science, sanctity, and perfection makes code amendments infrequent … [and] is accompanied by fierce debates about whether inserting the new material will despoil the organic structure of the code… . Only major political and social transformation and development justifies rewriting a code in whole or in part.” Indeed, Cappalli cites and quotes from an Italian commentator that although the present day Italian code was adopted in 1942 during the Fascist regime of Benito Mussolini, “Italian scholarly traditions were sufficiently strong to protect the code from serious ideological contamination” (fn. 29).

⁹“Imagine you enter a parlor. You come late. When you arrive, others have long preceded you, and they are engaged in a heated discussion, a discussion too heated for them to pause and tell you exactly what it is about. In fact, the discussion had already begun long before any of them had got there, so that no one present is qualified to retrace for you all of the steps that had gone before. You listen for a while, until you decide that you have caught the tenor of the argument; then you put in your oar. Someone answers; you answer him; another comes to your defense; another aligns himself against you… . However, the discussion is interminable. The hour grows late, you must depart. And you do depart, with discussion still vigorously in progress.”

¹⁰The analysis of Professor Fuller's paper in Richard B. Cappalli, “Open Forum: At the Point of Decision: The Common Law's Advantage Over the Civil Law,” has been used a great deal in the exposition that follows.

¹¹There is a school of American jurisprudence, critical legal studies, that mirrors postmodern European scholarship, including the critical studies of the Frankfort School and public intellectuals such as Pierre Bourdieu, in conceiving that law in the United States serves to maintain the dominance of American capitalists.

Brown v. Board of Education. 347 U.S. 483 (1954).

Bush v. Gore. 531 U.S. 98 (2000).

Cherokee Nation v. Georgia. 30 U.S. 1 (1831).

Marbury v. Madison. 5 U.S. 137 (1803).

Muller v. Oregon. 208 U.S. 412 (1908).

Planned Parenthood v. Casey. 505 U.S. 833 (1992).

Roe v. Wade. 410 U.S. 113 (1973).

Southern Pacific Co. v. Jensen. 244 U.S. 205 (1917, Holmes, J. dissenting).