The aesthetics of legal rhetoric: The ambiguities of race in Adarand v. Pena and the beginning of the end of affirmative action

Abstract

For scholars interested in understanding the intimate relationship between law and communication, few cases can rival the symbolic value of the Supreme Court's decision in Brown v. Board of Education (1954). Yet less than a half century after Brown, Americans face the possibility that in the name of “equality”; the nation is having to renegotiate the ways in which the federal government provides legal and equitable remedies to individuals in a purportedly color‐blind world. In the summer of 1995 a divided Supreme Court decided the Adarand case and in the process raised the level of judicial scrutiny that would be used in federal affirmative action cases. This article focuses on the aesthetic dimensions of judicial rhetoric and argues that the law can be viewed as a judicial performance rather than simply a formalistic set of rules. Using the Adarand decision as a case study, the essay illustrates some of the ambiguities and contradictions that occur when jurists grapple with competing visions of race, equality, and affirmative action.

Key words:

• Adarand
• aesthetics
• affirmative action
• equality
• law
• performance
• rhetoric