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| Publication year | 2019 |
| Pages | 24 |
Keepers of the Flame: John Roberts, Elena Kagan, and the Rhetorical Tradition at the Supreme Court
By Brian Porto, Esq.
Introduction
In several previous articles, I have discussed the role played by classical rhetorical techniques in some of the Supreme Court's most memorable opinions. Those articles have introduced and illustrated the use of rhetoric by Justices Holmes, Jackson, Black, Brennan, and Scalia, who had different strengths as rhetoricians, but who all communicated effectively with their readers in a modern, conversational style.[1] This article will show that the tradition of rhetorical excellence represented by those justices lives on at the Court in the opinions of Chief Justice Roberts and Justice Kagan, respectively. Before discussing the writing of Roberts and Kagan, though, a brief introduction to classical rhetoric is in order.
A Rhetorical Primer
Rhetoric, the ancient art of persuasion, is traceable to Greece in the Fifth Century B.C.E.[2] Rhetoric's essence is nicely encapsulated in the following statement by Aristotle: "It is not enough to know what to say--one must know how to say it."[3] That statement is a key to the difference between rhetoric and logic; logic (philosophy) seeks to establish certain truth, whereas rhetoric assumes that truth is not certain, but instead, probable at best.[4] When truth is certain, as Plato believed, "how you say it" (or write it) may not be crucial, but when truth is at most probable, as Aristotle believed, the advocate's ability to persuade, orally or in writing, is indeed crucial.
Accordingly, rhetorical techniques are invaluable to aid persuasion in establishing the best available truth, which is what lawyers seek to do in court and in writing every day. Former federal judge Richard Posner recognized the importance of rhetoric to law when he observed that "[m]any legal questions cannot be resolved by logical or empirical demonstration."[5] This reality elevates the importance of persuasion through rhetoric.
The ancient Greeks and their Roman successors divided rhetoric into the following canons: (1) Invention, (2) Arrangement, (3) Style, (4) Memory, and (5) Delivery.[6] The last two apply to oral advocacy only, so this article - which focuses exclusively on writing - will discuss just the first three.
Invention is a means of identifying and producing the available arguments on a particular question. Its most visible features are the three processes by which rhetoric persuades: logos, pathos, and ethos.[7] Logos is familiar to lawyers because it is rational argument through logical reasoning. Pathos, on the other hand, is an effort to influence the reader's or the audience's emotions in favor of the advocate's position. Ethos is the speaker's or writer's effort to establish credibility in the eyes of the reader or audience.[8] Aristotle stressed pathos and ethos as much as logos because he believed that logical reasoning could not always win an important argument in which the decision maker must choose based on imperfect knowledge. In these circumstances, an advocate who demonstrates credibility and whose argument strikes a responsive chord in the decision maker's heart may well gain an advantage over the opponent. Writing is most likely to persuade when it is vivid and evocative, yet scrupulously faithful to the facts of a case.
Arrangement addresses the inherent problem of "sequence" in ordering one's arguments. Modern legal arrangement is traceable to one Corax, who lived in Syracuse in ancient Greece during the Fifth Century, B.C.E. He created an outline for courtroom argument, including an introduction, statement of facts, argument, and conclusion. The Romans later added a summary of the argument between the statement of facts and the argument, creating what has become the modern appellate brief.[9]
Style, the remaining canon, encompasses "the fun stuff," the rhetorical examples we most remember in Supreme Court opinions because they involve word choice. The best-known examples of style are figures of speech, which are comprised of schemes and tropes. Schemes are deviations from customary word order; a familiar example is parallelism: the similarity of structure in a pair or series of related words, phrases, or clauses, as in: "Judge Jones tries to make the law clear, precise, and equitable."[10] Another example is alliteration, the repetition of initial or medial consonants in two or more adjacent words, as in the ad that described the soft drink Sprite as "tart, tingling, and even ticklish."[11] Tropes, on the other hand, are deviations from the customary meanings of the words used. An easily recognized example is the metaphor: an implied comparison between two dissimilar things that nonetheless have something in common. Metaphors abound in the law, sometimes to the point of approximating legal doctrines, such as the "wall" of separation between church and state in First Amendment law or the "fruit of the poisonous tree" in Fourth Amendment law.
The effective use of both schemes and tropes has resulted in many a memorable Supreme Court opinion, as my previous articles have illustrated. The remainder of this article will show the use of those rhetorical devices and others in one opinion each by Chief Justice Roberts and Justice Kagan, the heirs to the Court's rhetorical tradition.
Chief Justice Roberts: Majority Opinion in Williams-Yulee v. The Florida Bar, 135 S.Ct. 1656 (2015)
At issue in Williams-Yulee was whether the First Amendment permits states to bar "judges and judicial candidates from personally soliciting funds for their campaigns."[12] The Court, speaking through the Chief Justice, held that the First Amendment indeed permits such a restriction; accordingly, the majority affirmed the same judgment by the Florida Supreme Court.[13] The Court thereby validated Canon 7C(1) of Florida's Code of Judicial Conduct, which included the above prohibition, but permitted judges and judicial candidates to establish "committees of responsible persons" that could "solicit[ ] campaign contributions and public support from any person or corporation authorized by law."[14]
Petitioner Lanell Williams-Yulee, who called herself Yulee, is a Florida lawyer who sought a trial-court judgeship in Hillsborough County, which includes Tampa. She drafted, signed, and mailed to local voters a letter that announced her candidacy and solicited "[a]n early contribution of $25, $50, $250, or...
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