Academic journal article
By Makau, Josina M.; Lawrence, David
Argumentation and Advocacy , Vol. 30, No. 4
Legal critics Dellapenna and Farrell (1991) urge examination of "how modes of judicial reasoning and the discourse in which that reasoning has resided have changed." Such work is important, they note, because the discourse of law "structures the 'conversation through which democracy proceeds'". This essay supports Dellapenna and Farrell's perspective. Uncovering three judicial inventional strands--a rhetoric of efficiency, a revised rhetoric of reasonableness, and appeals to tradition and majoritarian ethics--the essay reveals how judicial discourse has been used to redefine the Court's role and the world-view presumed for its audiences. More specifically, this study shows how the resulting new "thesis of political morality" (Sager, 1990, p. 28) has transformed this nation's conception of democracy.
Studies of judicial reasoning (Dworkin, 1986, Golden and Makau, 1982) reveal that Supreme Court inventional strategies both reflect and help create cultural norms, particularly those that govern institutional ethics and the ostensible grounds for institutional decision making. Upham's (1991) study of differences between Japanese and American methods of judicial invention supports this view. Upham's research indicates that although the actual legal results of cases in these diverse cultures are sometimes remarkably similar, the Justices' inventional strategies are strikingly different. According to Upham, the fundamental difference in rhetorical strategy "both exemplifies and creates a different understanding of the nature of society that may be fundamentally more important than any similarity in outcomes".
White's (1984) research further supports study of judicial inventional strategies. He notes that the law "constitutes both the community and the culture it commands". The language of law is a language "in which our values and motives are defined, in which our methods of reasoning are elaborated and enacted; and it gives us our terms for constructing a social universe by defining roles and actors and by establishing expectations as to the propriety of speech and conduct" (White, 1984, p. 36).(1) Examining evolving judicial inventional strategies therefore provides valuable insight into shifting cultural norms.
SETTING THE CONTEXT FOR JUDICIAL INVENTIONAL STRATEGIES
From Marshall's famous Marbury opinion, written largely to legitimize the power of judicial review, to today's controversial decisions, Justices have crafted arguments responsive to societal standards of reasonableness (Murphy, 1964; Ball, 1978; Berkson, 1978; Golden & Makau, 1982; Makau, 1983, 1984a, 1984b). Throughout this history, however, critics have challenged judicial efforts to maintain an ethos of reasonableness. During this century, legal realists posed a difficult and prolonged challenge to the Court's ethos by publicly questioning, for example, the authenticity of the Court's reasoning strategies. The noted Realist Jerome Frank (1930) insisted that judges "in fact" start with conclusions and make efforts to substantiate them as they proceed. He argued that judicial decisions are primarily the result of hunches combined with a judge's entire life of experiences, shaped values, and beliefs. He urged both judges and scholars to acknowledge the tenuous nature of judicial decision making, thereby helping all involved refine techniques of prediction.
The more recently evolved Critical Legal Studies Movement seeks even greater "realism."(2) Proponents of this perspective reject even the pretense of reasonableness in judicial decision making. They see instead the hand of politics (i.e., ideology) and economics behind every major Court decision, casting doubt on even the most zealous judicial effort to appear reason bound.
But even adherents of the Realism and Critical Legal Studies (CLS) perspectives readily acknowledge that Justices seek to maintain an ethos of reasonableness. They recognize, too, the potency of judicial rhetoric. …