Rhetoric and Discourse in Supreme Court Oral Arguments
Sensemaking in Judicial Decisions
Routledge – 2013 – 224 pages
While legal scholars, psychologists, and political scientists commonly voice their skepticism over the influence oral arguments have on the Court’s 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 research—the willingness of scholars to criticize oral arguments but their unwillingness to study this communication. With the growing accessibility of the Court’s 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.
'Malphurs's framing device - presenting his book as a letter to the Chief Justice - may seem like a gimmick. It's not. Rather, the "audience of one" evinces Malphurs's uncommon mission…Malphurs wants to improve oral arguments, to make oral argument a more effective tool for reaching better decisions. Chief Justice Roberts is the one person with the most control over how the Supreme Court conducts oral arguments, so Chief Justice Roberts is the natural audience for Malphurs's book….as a scholar of communications, Malphurs focuses on oral argument as the most visible and most communicative of the Court's decisional inputs. By improving that input, Malphurs believes we can improve the quality of the Court's decisions without debating decisional accuracy (or personal agreement) in individual cases. It is a simple and sensible project - the same sort of ingredient-focused approach that would lead a chef to recommend confidently that your lasagna would taste better with fresh instead of frozen spinach, even without trying a bite.' David Ziff, Legal Communication & Rhetoric: JALWD
1. A Letter to the Chief Justice of the United States 2. Historical Development of Legal Rhetoric and Supreme Court Oral Arguments 3. Do Oral Arguments before the Supreme Court Matter? A Simple Explanation 4. New Question: Oral Arguments "Matter," But How Do We Make Sense of Them? A Modest Proposal 5. Critical Theories and Research Questions: Proposing a Method to Capture the Madness of Oral Arguments 6. The Many Faces of Oral Argument: Oral Argument’s Purposes and the Justices’ Styles 7. Arguing about "Bong Hits 4 Jesus’ Testing Theory and Method in Morse v. Frederick 8. Making Sense of Child Rapists in Kennedy v. Louisiana: A Firsthand Observation 9. Historical Repercussions of Judicial Sensemaking: District of Columbia v. Dick Anthony Heller 10. The Ground Covered and New Ground to Uncover: Responding to Critics, Offering Recommendations, and a Final Letter to the Chief Justice 11. Biased Sensemaking: Compromising the Court’s Rhetorical Authority
Ryan Malphurs earned a PhD in Communication from Texas A&M University, USA, and is a Senior Litigation Consultant for Courtroom Sciences, Inc.