The Rhetoric of Constitutional Law

Abstract

I spend much of my time dealing with Supreme Court opinions. Usually, I download and read them the day that they are announced by the Court. I edit them for my casebook and teach them to my students. I write about them, lecture about them, and litigate about them. My focus, like I am sure most everyone's, is functional: I try to discern the holding, appraise the reasoning, ascertain the implications, and evaluate the decision's desirability. Increasingly, though, I have begun to think that this functional approach is overlooking a crucial aspect of Supreme Court decisions: their rhetoric. I use rhetoric here, not in the popular pejorative sense, but in the classical meaning of the word. The Supreme Court's opinions are rhetoric in that they are reasoned arguments intended to persuade. I believe that we can gain new insights about the Court and constitutional law by looking at the opinions from a rhetorical perspective. Imagine that the Supreme Court decided cases without published opinions. This is not inconceivable.1 Other branches of government generally make their choices without written opinions. Congress generally provides legislative history for its bills, but it usually is about explaining the meaning of the provisions more than presenting a persuasive argument in favor of a law. Most state and local governments don't even provide a formal legislative history for their enactments. Presidents tend to act without formal statements justifying their conduct. Even in lower courts, cases are most frequently decided without published opinion. One study found that there is no written opinion in almost seventy-five percent of federal court of appeals decisions.2 But every Supreme Court decision has a written opinion.3