The Rhetoric of Judging Well

Known as the “swing justice,” Justice Anthony M. Kennedy provided the key vote determining which way the Supreme Court would decide on some of the most controversial cases in US history. Though criticized for his unpredictable rulings, Kennedy also gained a reputation for his opinion writing and, more so, for his legal rhetoric.

This book examines Justice Kennedy’s legacy through the lenses of rhetoric, linguistics, and constitutional law. Essays analyze Kennedy’s opinion writing in landmark cases such as Romer v. Evans, Obergefell v. Hodges, and Planned Parenthood v. Casey. Using the Justice’s rhetoric as an entry point into his legal philosophy, this volume reveals Kennedy as a justice with contradictions and blind spots—especially on race, women’s rights, and immigration—but also as a man of empathy deeply committed to American citizenship.

A sophisticated assessment of Justice Kennedy’s jurisprudence, this book provides new insight into Kennedy’s legacy on the Court and into the role that rhetoric plays in judging and in communicating judgment.

In addition to the editors, the contributors to this volume are Ashutosh Bhagwat, Elizabeth C. Britt, Martin Camper, Michael Gagarin, James A. Gardner, Eugene Garver, Leslie Gielow Jacobs, Sean Patrick O’Rourke, Susan E. Provenzano, Clarke Rountree, Leticia M. Saucedo, Darien Shanske, Kathryn Stanchi, and Rebecca E. Zietlow.

“The Rhetoric of Judging Well truly blazes a trail about how to take the rhetoric of legal reasoning out of the partisan, polarized world of legal journalism and bring it intelligibly into public discourse. Rhetoricians will gain copious insights about legal reasoning, and legal scholars will discover rhetorical tools for their research.”—William M. Keith, coauthor of Beyond Civility: The Competing Obligations of Citizenship

“The Rhetoric of Judging Well offers a distinctive approach to legal rhetoric by providing a comprehensive and thorough account of the jurisprudence of a single, important justice. I know of no other book quite like it.”—Austin Sarat, author of When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration

David A. Frank is Professor of Rhetoric at the University of Oregon. He is the coauthor of numerous books, including most recently Frames of Evil: The Holocaust as Horror in American Film.

Francis J. Mootz III is Professor of Law at the University of the Pacific. He is the author of Law, Hermeneutics and Rhetoric and Rhetorical Knowledge in Legal Practice and Critical Legal Theory.

Acknowledgements

Introduction

Part 1. Judgment in Classical Rhetoric

1. Justice Kennedy and the Interpretation of Legal Texts: The Classical Background

Michael Gagarin

2. Sex and Moral Pollution in the Rhetoric of Justice Kennedy

Eugene Garver

Part 2. Judgment in Stasis Theory

3. Justice Kennedy’s Definitional Construction of Gay Rights in Lawrence and Obergefell: Legal Rhetorical Analysis with the Interpretive Stases

Martin Camper

4. Justice Kennedy, Natural Liberty, and Classical Stasis Theory: Advancing Free Speech with Rhetorical Knowledge and Interpretive Argumentation

Susan E. Provenzano

5. Romer v. Evans: Justice Kennedy, Justice Scalia, and the Rhetoric of Judging Well

Sean Patrick O’Rourke

Part 3. Judgment in Contemporary Rhetorical Theory

6. Constructing a Free Agent: “Good Judgment” in Justice Kennedy’s Lawrence v. Texas Opinion

Clarke Rountree

7. Justice Kennedy and Natural Law Argumentation

Francis J. Mootz III

8. Justice Kennedy, Federalism, and the Nonproduction of Rhetorical Knowledge

Darien Shanske

Part 4. Judgment and Justice Kennedy’s Ethos

9. Justice Kennedy’s Free Speech Optimism

Ashutosh Bhagwat

10. Strongmen and Neurotics: Visible Struggle and the Construction of Judicial Ethos

James A. Gardner

11. The Anticlassification Topic and Equal-Liberty Template

Leslie Gielow Jacobs

Part 5. Justice Kennedy’s Misjudgments: Women, Race, and Immigrants

12. Performing a “View from Nowhere”: Justice Kennedy’s Denial of Embodied Knowledge

Elizabeth C. Britt

13. Women in Justice Kennedy’s Jurisprudence

Kathryn Stanchi

14. Justice Kennedy’s Anticlassification Doctrine: Not Judging Well

Rebecca E. Zietlow

15. Whose Freedom? Justice Kennedy’s Sovereignty, Autonomy, and Liberty Discourses in the Immigration Cases

Leticia M. Saucedo

Part 6. Assessment

16. Rhetorical Vision and Judgment: Did Justice Anthony M. Kennedy Judge Well?

David A. Frank

List of Contributors

Index of Cases

Index of Names and Subjects

Download a PDF sample chapter here: Introduction

Communication Studies

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Rhetoric