Nichola D. Gutgold - The Rhetoric of Supreme Court Women: From Obstacles to Options

The Rhetoric of Supreme Court Women

The Rhetoric of Supreme Court Women

From Obstacles to Options

Nichola D. Gutgold

LEXINGTON BOOKS

Lanham Boulder New York Toronto Plymouth, UK

Published by Lexington Books

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Copyright 2012 by Lexington Books

Photos courtesy of Steve Petteway, Collection of the Supreme Court of the United States.

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British Library Cataloguing in Publication Information Available

Library of Congress Cataloging-in-Publication Data

Gutgold, Nichola D.

The rhetoric of Supreme Court women : from obstacles to options / Nichola D. Gutgold.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-7391-7250-6 (cloth : alk. paper) ISBN 978-0-7391-7252-0 (pbk. : alk. paper) ISBN 978-0-7391-7251-3 (electronic)

1. Women judgesUnited States. 2. United States. Supreme CourtOfficials and employees. I. Title.

KF8775.G88 2012

347.73'2609252dc23

2012010114

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992.

Printed in the United States of America

In memory of my mother, Julia Faleshock DelBalso

Contents

Foreword

Acknowledgments

Bibliography

Index

About the Author

Foreword

The rhetoric of reflection is the great cultural specter of the last century. The specter of reflection as a cultural artifact has shaped the social realities by which people in the United States have come to understand themselves, and more decisively, their relation to each other. But more importantly, it has shaped the way in which we organize our thoughts and express ourselves. Institutionalized into patterns of discourse, it has shaped the forms through which we can understand ourselves, our positions and the foundations of our perspectives.

The metrics of that rhetoric are founded on calculating distancesbetween what was before, what is now and what may lie in the future. This reflection of measurement also reflects the speaker. We measure out of ourselves outward from a history in which we are embedded (and embed ourselves) and into a future in which we are absent but for which we serve as bridge, architect, memory, and instrument. That gauging reflection becomes central to those whose reflection is measured as a progress from the margins to the center of privileged communal life, and thus as a moving picture of mores, power, and place within social, political, economic, and legal society. The rhetoric of reflection marks not just the external space within which communication between individuals is possible. It also marks the way in which individuals constitute themselves internally.

Reflection gives shape to a rhetoric that is used as an instrument and that is the framework for self constitution. Thus, reflection and rhetoric acquires the form of specter, both constituted from and constituting a self-reflective community. This specter is particularly potent for individuals who are members of groups, once invisible, now moving toward greater prominence in a society marked by change. Women are among the community of individuals whose status, social and self-conception, has undergone dramatic transformation in the last century. Among the most visible are subgroups among the formerly invisible who are particularly embedded in a community built around the construction and performance of words and who in those exercises also control their own construction. The women who entered the legal profession play a critically prominent role as a voice for that community, and from within that community to serve as its interpretive markers.

Nichola Gutgold has masterfully captured the form of this specter in her exploration of the rhetoric of four of the most influential and prominent women in the American legal establishmentthe first four women to be appointed to the United States Supreme Court. Professor Gutgold considers the arc of the communication styles of the justices over time. Justice OConnor and Justice Ginsburg are the trailblazers; Justices Sotomayor and Kagan produce a rhetoric less shaped by obstacles to their invocation of discourse and more shaped by the memory of those obstacles, now reconstructed in the face of distance between them; a distancing rhetoric meant to re-construct them outside the constrains of the confines created by the obstacles that faced their predecessors.

Professor Gutgold provides more than the usual approach, grounded in persuasive style and symbol in public and political setting. She understands the deeply embedded character of discourse as both a longitudinal marker of change and as a set of scars that affect the nature and effect of discourse propelled from past through present to future. In the Archeology of Knowledge, Michel Foucault reminds us of the power of discourse to convey substantially more than the simple meaning derived from the combination of the meaning of the aggregate of words and signs used. Communication serves to pronounce (enouncement) as well as assign relationships to the objects and subjects of pronouncement. These pronouncements are not merely objective, in the sense of providing direction and information, but also serve to construct meaning, deeply embedded in culture, that in turn shapes the body of knowledge from which it arises. Professor Gutgold draws this out expertly in the context of the Justices engagement with their words and particularly in the symbol and gesture-laden context in which these words are delivered. The form of that elaboration is well-embedded in the structures of classical rhetoric, and that form serves the subject well. These rhetorics are especially well developed in the memoria section of each chapter. Justice OConnor reads scripted text and improvises through eye contactcontrolled and carefulthe markers of the pioneer. Justice Ginsburg builds on the work of her assistantsand rewrites; well researched, purposeful, succinct, directed and to the point, the markers of a communicator staking territory. Justice Sotomayor builds text on text to draw a picture of herself in the context in which she finds herself, a self affirmation that affirms a communal space, a space beyond sex to ethnicity and immigrant status. Lastly, Justice Kagan is a study of text on text communication, she seeks to liberate herself from carefully prepared text through the development of systems of word prompts that provide a space for the impromptu but preserves the safety of the prepared, the domain of someone comfortable with the present.