Creating kairos at the Supreme Court: Shelby County, Citizens United, Hobby Lobby, and the judicial construction of right moments.

• Author: Berger, Linda L.

[M]yth leads people to give their attention to one possibility rather than another, and hence to change the direction of their intentions and their dreams. Columbus proposed his expedition at the right time--the Kairos-- when people were ready to accept the discovery of a new world. (1) 1. INTRODUCTION

Kairos captures the right moment within the chronos, or the entire sequence of moments. To realize kairos in this way, the author must grasp the right moment in time and spaced. (2) One aspect of kairos is sensing the most opportune moment--what point in time--to make a particular argument or claim. The summer of 2015 was, for example, the right time to argue in favor of same-sex marriage in the United States. (3) The second aspect of kairos is apprehending the essential moment--what space in time will "stand in" for and exemplify the crux of the problem. (4) This kind of right space is exemplified by the due process challenge that distills its argument down to the image of the judge advising the defendant to stay away from the courtroom in order to stay "safe from the rage of the crowd" when the verdict is read. (5)

Kairos is an ancient rhetorical concept that was long neglected by rhetorical scholars, (6) and its significance to legal argument and persuasion has been little discussed. Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. (7) In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history shaping individual moments into crises and turning points. (8) From a rhetorical perspective, chronos is more closely allied with the narrative accounting for--how long? what next?--while kairos is the more metaphorical imagining as--at what point? in what space? (9)

I begin with a brief overview of kairos. (10) Suggesting that it represents a quintessential judicial use of kairos, I next examine Justice Holmes's dissent in Frank v. Mangum, the Supreme Court decision denying habeas relief to a Jewish factory manager later hanged by a mob in Georgia. (11) Then I discuss the crucial lessons in kairos that can be drawn from pairing that dissent with Justice Holmes's opinion for the Court in a seemingly indistinguishable case ten years later. (12) I next consider recent examples of kairos: first as "the most opportune time" in an opinion by Chief Justice Roberts marking a turning point in the life of the Voting Rights Act, (13) and then as "the essential moment" in an opinion by Justice Alito expanding the reach of the Religious Freedom Restoration Act. (14) The conclusion synthesizes these themes, addressing some advantages and limitations of kairos as rhetorical method.

2. RECOGNIZING KAIROS

   Clearly recognizable after the tipping point arrives, kairos in its sense as the most opportune moment is illustrated by the rhetorical developments that followed Justice Scalia's comment in United States v. Windsor (15) that there would be no turning back the clock after the Supreme Court decision on the Defense of Marriage Act. (16) The comment became a kairic fulcrum, a turning point for lower court judges who one after another began to invalidate state laws prohibiting same-sex marriages. (17) Similarly, Citizens United v. FEC, (18) characterized by some as having recognized free speech rights for corporations, appeared to carve out an opening for corporations to claim that they have the right to religious freedom and religious expression as well. (19)

   As for kairos in the sense of capturing the essential moment, an illustration can be found in the petitioner's brief filed in Miranda v. Arizona. (20) Miranda had been charged with kidnapping and raping an eighteen-year-old girl. (21) According to the brief, "[o]n March 13, 1963, defendant was arrested at his home and taken in custody to the police station where he was put in a lineup consisting of four persons." (22)

   After being identified by two witnesses, "Miranda was then taken to Interrogation Room 2 at the local police headquarters and there interrogated on both [this matter and an unrelated robbery]." Lest the reader fail to grasp the essential moment, the brief repeats the information with more detail: "After the lineup, it was Officer Cooley, who had arrested Miranda, who took petitioner to Interrogation Room 2." (23) The brief points out that no one told Miranda of his right to counsel, (24) and then returns again: "Here, Officer Cooley also testified as to interrogation in Room 2 of the Detective Bureau, and narrated extensively a confession he attributed to the petitioner." (25) And yet again, the essential moment: "A written statement, obtained from Miranda while he was under the interrogation in Room (2), was then put into evidence." (26) And finally, the argument itself:

   When Miranda walked out of Interrogation Room 2 on March 13, 1963, his life for all practical purposes was over. Whatever happened later was inevitable; the die had been cast in that room at that time. There was no duress, no brutality. Yet when Miranda finished his conversation with Officers Cooley and Young, only the ceremonies of the law remained; in any realistic sense, his case was done. (27) In the Miranda brief, Interrogation Room 2 became the actual physical place within a particular moment, a kairic space that captured the essence of Miranda's argument: Unless the Constitution required police to tell a criminal defendant that he had the right to have an attorney present during his questioning, the defendant's Constitutional rights at trial would be virtually meaningless. The defendant's fate would rest on what he had said, without the benefit of counsel, while being interrogated by police, alone in a room for hours.

   1. Definitions from Classical to Contemporary

      The nuanced sense of timeliness afforded by the concept of kairos helps make an argument "more sensible, more rightful, and ultimately more persuasive." (28) In leveraging a particular point in time that is better for a particular purpose than any other point, kairos blends three related concepts:

      * At what point is this the right time (as opposed to any time)?

      * At what point is this the right setting--a context of tension, crisis, or conflict that calls for something other than a generalized solution that might work at any time?

      * At what point is this a fitting opportunity--a situation making a particular rhetorical response appropriate or presenting the chance to carry out a purpose that could not be accomplished at some other time? (29)

      Kairos indicates that there is "an individual time having a critical ordinal position"--an actual turning point that is marked off from the time before and after. (30) Contemporary rhetoric scholar John Poulakos suggests that kairos might even be thought of as the concept that "ideas have their place in time and unless ... they are voiced at the precise moment they are called upon, they miss their chance." (31)

      In comparison with chronos, the familiar notion that things unfold as they do because events follow one another not only in time but in causal connection, (32) kairos is more ambiguous and complex. First, kairos is defined as meaning both the most opportune time--a particularly appropriate or fitting opportunity presenting itself to the writer or speaker--and the essential moment--the point in time that captures the essence of the problem or marks a crucial turning point. (33)

      Next, while chronos appears closer to narrative, kairos is more metaphorical in both process and result. For example, in comparison with the storyline detailing the sequence of events over time, kairos is depicted as the discovery, creation, or capture of a crucial moment of time. Still, even though much of what we call storytelling is concerned with chronos--that is, with events arranged in a sequential chain to help us make sense of what happened (leading us to conclude, perhaps, that things happen for a reason)--kairos often plays the ah-ha-moment role in narrative. In the well-told story, we wait for the so-called tick-tock, the kairos moment when things fit into place. (34) The narrative arc of stories may depend on the magical moments when the curtain opens to unveil something previously unknown. Rather than a final act linking events together in a way that makes them understandable, this magical moment is an illustration of kairos within the chronos of a particular narrative.

      Chronos and kairos suggest differing authorial techniques, but even these are overlapping. Unlike the storyteller's more passive passage through chronological time, kairos presumes that the author will intervene in history's causal chain. In one of its senses, the kairos moment may appear to the writer or speaker as a door to be opened to a new possibility, a thread to be pulled to unravel the existing fabric. In another of its senses, the kairos moment provides the writer or speaker with the setting within which to portray what happens next as natural and inevitable. This natural inevitability is supplied by the things we already know, what the Greeks termed doxa--the implicit knowledge that operates automatically and unconsciously, so that it "goes without saying because it comes without saying." (35)

      Crucially, because what goes without saying depends on when, where, and who you are, the concept of kairos extends beyond time to include setting and to encompass author and audience. Aristotle's descriptions of kairos include both the "right or opportune time to do something" and "the right measure in doing something." (36) The inclusion of a sense of appropriateness as part of the meaning of kairos is shown in the description of kairos as involving qualitative time (in contrast to chronos, which addresses quantitative time) and the companion description of kairic time as...