Viewing justices, First Amendment through rhetorical lens

Tuesday, December 27, 2011

Of all the books I’ve read on the First Amendment, I can’t say I have ever read anything quite like the one recently offered up by Professor Craig R. Smith and his colleagues.

A First Amendment Profile of the Supreme Court (John Cabot University Press, 2011) is a book that First Amendment lawyers, scholars, and students of the First Amendment will want to consult for another lens through which to view their subject.

Reasoning from rhetoric

Building on Cicero’s general ideas on rhetoric, this collection of 12 original essays, written by eight communication scholars, focuses on the rhetorical framework in which the current justices (and former Justices John Paul Stevens and David Souter as well) cast their First Amendment opinions. The contributors profile each justice “in terms of his or her claims during the nomination hearings and the positions [each took] in significant Supreme Court decisions. The object,” says Smith, the book’s editor, “is to provide a rhetorical frame that each of these justices would find appealing regarding the First Amendment.”

In other words, lawyers arguing before the Court might improve their chances of success if they know how to communicate in the language of those whom they wish to persuade.

Craig Smith is ably skilled to conduct this undertaking. He has written much on the First Amendment and is the director of the Center for First Amendment Studies and professor of communication studies at California State University, Long Beach. In some ways, this latest collection tracks Craig’s Silencing the Opposition: How the U.S. Government Suppressed Freedom of Expression During Major Crises (State University of New York Press, 2nd ed., 2011). Here as there, the focus is on the various kinds of rhetorical moves and strategies employed either to advance or defeat a First Amendment claim.

“Having filed amicus briefs and sat in on several oral arguments before the Supreme Court, I am regularly astonished at the lack of rhetorical skill evident in presentations before the Court,” writes Smith. “Lawyers often fail to adjust,” he adds, “to the predilections of justices and thereby miss important rhetorical opportunities.” By that measure, the moot-court folks at Georgetown Law Center and elsewhere might be well advised to consult Smith before offering a practice session for a case like, say, United States v. Alvarez — the medal of valor case soon to be argued before the Court.

Smith and his colleagues have done much homework. They have studied much of what each of the justices has said in his or her confirmation hearings and have likewise analyzed many (but not always all) of their significant First Amendment opinions in order to draw certain conclusions on how best to present an argument to this or that justice … or, more important, to five of them.

Developing the thought of Philip Bobbitt’s Constitutional Fate: Theory of the Constitution (1982), they examine the “modalities” of argument employed by each justice — i.e., historical, textual, structural, precedential, ethical and prudential approaches to decision-making. Adds Smith: “In describing the modalities of argument set out by Bobbitt, I have established a framework for the analysis of each sitting justice on the Supreme Court. What Bobbitt calls a practice-based approach to judicial decision making is actually a rhetorical study of how opinions are framed.”

And this Smith and his colleagues do in ways tailored to the First Amendment jurisprudence of the various justices. For the most part, I found this approach original and sometimes quite helpful, though I do have a few questions (more on that later).

The method is the message

If you hope to win Justice Antonin Scalia’s vote, play the constitutional-originalism card (text, structure, history) and draw him out in ways that allow him to be dramatic. With Chief Justice John Roberts, start with textual arguments (if you can), follow with precedent (you can mold it a bit), and close by coating it all with strong prudential arguments (that old cost-benefit analysis) — and nix the drama! With Justice Anthony Kennedy (aka “Mr. 5”), you want to offer up some textual, precedential and prudential arguments, but in the end what counts most are ethical arguments (i.e., “is this fair, right, good?” etc.) — the first three arguments are important only if they can be shaped to square with the last one, the trump card, if you will. All of that is my nutshell version of what is set out in far more sophisticated and documented ways in A First Amendment Profile of the Supreme Court.

Now, if you want to secure Justice Stephen Breyer’s vote you must be mindful that he “consistently frames his decisions with precedential, ethical, and prudential arguments.” More than all else, we are told, Breyer is a “pragmatic judge.” In other words, his main concern seems to be with how the law affects “the day-to-day lives of contemporary Americans.” He’s not too concerned with originalist or textual matters if they stray too far from his pragmatist/ethical agenda.

As for Justice Ruth Bader Ginsburg, her style focuses primarily on “precedential and ethical reasoning,” though it also requires some “respect for stare decisis and tradition” in combination with a measure of “flexibility” to accommodate an “evolving American ethos.” That said, we are advised that “advocates before the highest court may benefit from crafting arguments that speak to multiple modalities.”

And then there is Justice Clarence Thomas: the jurist who, we are told, “consistently frames his arguments about the First Amendment with historical, precedential, and prudential arguments.” Though this may strike some as surprising, we are admonished that it would be “foolish to neglect the arguably more central place that precedent and prudence occupy in Justice Thomas’s decisions.” That is, Thomas “is a much more complicated thinker on the First Amendment than a strictly originalist label implies.” (I found this essay by Kevin A. Johnson to be among the especially informative in the collection.)

Next, is Justice Samuel Alito. He is, we are told, a precedent-and-prudence man: “First and foremost, advocates before the Court should frame arguments in terms of precedent in order to persuade Justice Alito.” If, as in Citizens United v. Federal Election Commission (2010), precedent is to be discounted, the best way to do so is by reliance on historical evidence. Barring that, prudential arguments must come before pragmatic ones. Such preferences notwithstanding, advocates should also be aware of the point that it may be necessary to “combine modalities” in order to “effectively frame their rhetorical messages.”

Justice Sonia Sotomayor — Smith tags her “the Scalia of the left” — is portrayed as a pragmatic jurist with little use for originalism. Because the justice took her seat on the Court while A First Amendment Profile of the Supreme Court was being written, the treatment given to her work is necessarily abbreviated. Still, her record at the time of the book’s writing suggests that she will “embrace historical, doctrinal, and prudential modes of argument.” The discussion of Justice Elena Kagan is likewise abbreviated for the same reason. Hence, it is more descriptive than analytical and focuses almost exclusively on her views of free speech before she came to the Court.

In the concluding chapter Smith usefully summarizes the points made in the essays. Among other things, he offers helpful tables of the justices and their preferred modalities of argument. A quick look at one table reveals that Chief Justice Roberts and Justices Ginsburg and Breyer place relatively little stock in historical arguments.

Technical troubles

The good news is that A First Amendment Profile of the Supreme Court is available in both print ($29.95) and in digital form ($15.95). The bad news is that in the version I read on my Kindle the table of contents was not hyperlinked, which made it difficult to navigate back and forth in the book.

Moreover, when one clicks to the “Go to” search function, it does not link back to the table of contents. What that means is that to move through the book to various chapters, one has to do word searches, which is more cumbersome. Even more irritating is that the tables in the conclusion are not entirely visible, presumably because they were not designed for an e-reader format. And although the book has an index of the major Supreme Court cases cited within it, it lacks a more general index, which would have been helpful as well.

These are not major drawbacks, but the publisher would be well advised to heed such reader concerns for future editions, in addition to doing updates to keep the information current.


Though I think this collection has, overall, many strengths and is thus worth the read, I do have some reservations.

At times the book offers too much — that is, when it offers multiple modalities of arguments for explaining a particular justice’s jurisprudence, the result can be dizzying. At other times, one wonders whether the modalities of argument might in actuality be more case-specific and less susceptible to the generalities made concerning a justice’s purported way of thinking about free-expression matters. (Some of the chapters suggest as much.)

There is also the problem of terminology. For example, the term “originalist” does not always mean the same thing when applied to the thought of different justices, as with, say, Scalia and Thomas. Witness their originalist differences, for example, in Brown v. Entertainment Merchants Assn. (2011), with the former writing the originalist majority opinion and the latter in originalist dissent.

In his conclusion, Smith argues that Alito is “more libertarian than his conservative colleagues when comes to First Amendment issues.” There is some support for that position if one looks to Alito’s concurrence in Morse v. Frederick (2007), his dissents in Brown v. Entertainment Merchants Assn. (2011) and United States v. Stevens (2010) belie that claim. Given such matters, it is not surprising that in the book’s conclusion Smith further divides the historical category into three sub-parts. Yet even as this conceptual move helps to cure the over-generalization problem, it creates a problem of micro-jurisprudence, which can result in making the overall process a bit more puzzling.

There is also the problem of Getting to Five: That is, even if one masters the rhetorical stratagems of each of the nine justices, one must be able to do so in a way that produces a majority. Smith is sensitive to this matter, as his conclusion shows. He writes: “Once one understands how complex these profiles of the Justices are, one realizes how difficult it is for advocates to make arguments that create a consensus of support on the Court.” Hence, when in doubt turn to precedent — the “number one preference among the Justices.” After that, the second most preferred modality is prudentialism followed by historicism.

Finally, I question the value of conflating the jurisprudence of First Amendment expression cases with those of the religious-liberty line of cases. Perhaps something is to be gained by doing so, at least in a broad sense, but these areas are so widely different as to be bodies of law unto themselves.

All in all, I nonetheless found the approach taken by Smith and his colleagues to be useful, provided it is nuanced enough to inform, but not so much as to confuse. Such reservations or concerns notwithstanding, when First Amendment lawyers moot their cases prior to arguing before the Court, they would be advantaged to have Smith present, if only to share some of the wisdom contained in A First Amendment Profile of the Supreme Court.