Malphurs - Rhetoric and disourse in supreme court oral arguments : sensemaking in judical decisions

Rhetoric and Discourse in Supreme Court Oral Arguments

While legal scholars, psychologists, and political scientists commonly voice their skepticism over the influence oral arguments have on the Courts voting pattern, this book offers a contrarian position focused on close scrutiny of the justices communication within oral arguments. Malphurs examines the rhetoric, discourse, and subsequent decision-making within the oral arguments for significant Supreme Court cases, visiting their potential power and danger and revealing the rich dynamic nature of the justices interactions among themselves and the advocates. In addition to offering advancements in scholars understanding of oral arguments, this study introduces Sensemaking as an alternative to rational decision-making in Supreme Court arguments, suggesting a new model of judicial decision-making to account for the communication within oral arguments that underscores a glaring irony surrounding the bulk of related researchthe willingness of scholars to criticize oral arguments but their unwillingness to study this communication. With the growing accessibility of the Courts oral arguments and the inevitable introduction of television cameras in the courtroom, this book offers new theoretical and methodological perspectives at a time when scholars across the fields of communication, law, psychology, and political science will direct even greater attention and scrutiny toward the Supreme Court.

Ryan A. Malphurs earned a PhD in Communication from Texas A&M University, USA, and is a Litigation Consultant at Tara Trask & Associates.

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Rhetoric and Discource in Supreme Court Oral Arguments

Sensemaking in Judicial Decisions

Ryan A. Malphurs

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Rhetoric and Discourse in Supreme Court Oral Arguments

Sensemaking in Judicial Decisions

Ryan A. Malphurs

First published 2013
by Routledge
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Simultaneously published in the UK
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

Routledge is an imprint of the Taylor & Francis Group, an informa business

2013 Taylor & Francis

The right of Ryan A. Malphurs to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

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Library of Congress Cataloging-in-Publication Data
Malphurs, Ryan A., 1980

Rhetoric and discourse in Supreme Court oral arguments : sensemaking in judicial decisions / By Ryan A. Malphurs.

p. cm. (Routledge studies in rhetoric and communication ; no. 13)

Includes bibliographical references and index.

1. United States. Supreme CourtDecision making. 2. Oral pleadingUnited States. 3. Forensic orationsUnited States. 4. LawUnited StatesLanguage. I. Title.

KF8748.M283 2012

347.732605dc23

2012029759

ISBN13: 978-0-415-64004-6 (hbk)
ISBN13: 978-0-203-08294-2 (ebk)

Typeset in Sabon
by IBT Global.

Printed and bound in the United States of America on sustainably sourced paper by IBT Global.

To all those who have brought me to this point, most importantly my wife, Nicole, who is more responsible than any other for this accomplishment, because without her love, support, and wisdom, I never would have embarked on this path and this project would never have reached fruition.

To the Justices of the Supreme Court of the United States, may you always have the keen insight to ask the right questions, the patience to listen carefully, and the wisdom to carefully consider the advocates response.

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Preface

Before diving into any research related text, readers have a right to know the motivations surrounding it and the context for it within scholarly literature. Much like many topics that turn into a lifes work, I read the transcripts of oral arguments in Morse v. Frederick as a first year doctoral student in the Communication department at Texas A&M University. I fell in love with the Courts tradition immediatelyit was law, politics, and life intertwined and laid bare in its rich complexity.

As a student of rhetoric, I was not wholly unfamiliar with the Courts approach to oral arguments, but like any curious graduate student, when I sought out scholarly articles on Supreme Court oral argument, I was shocked to find nothing. When querying the professor, and later chair of my committee, about possible scholarly articles related to the Courts oral argument, he smiled wryly and announced that there was very little. The seed had been planted, resulting in a final term paper that roughly analyzed the oral arguments in Morse v. Frederick, and served as the precursor to . Through subsequent years the topic of oral argument matured as I considered how other classes on discourse and organizational communication could refine my initial rhetorical approach. The imprints of various classes will be clear to Communication scholars through the mixed methods and development of this books arguments.

I received tremendous support from the Glasscock Center at Texas A&M and the College of Liberal Arts which enabled me to travel to Washington, D.C. and observe nearly fifty oral arguments before defending my dissertation. The experience of observing the Courts oral arguments is thrilling, and I encourage all readers, if you have not been before, go and observe what I consider to be one of our countrys finest egalitarian traditions. The Court always makes room for the public, even in high profile cases, and rarely can Americans sit so near and watch so closely our nations most esteemed figures at work.