The Rhetoric of Constitutional Law

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.