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The Development and Improvement of Instructions MAKING SENSE OF JUDICIAL SENSEMAKING: A STUDY OF RHETORICAL DISCURSIVE INTERACTION AT THE SUPREME COURT OF THE UNITED STATES A Dissertation by RYAN ALLEN MALPHURS Submitted to the Office of Graduate Studies of Texas A&M University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY May 2010 Major Subject: Communication MAKING SENSE OF JUDICIAL SENSEMAKING: A STUDY OF RHETORICAL DISCURSIVE INTERACTION AT THE SUPREME COURT OF THE UNITED STATES A Dissertation by RYAN ALLEN MALPHURS Submitted to the Office of Graduate Studies of Texas A&M University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Approved by: Chair of Committee, James Arnt Aune Committee Members, C. Jan Swearingen Charles R. Conrad Jennifer R. Mercieca Head of Department, Richard L. Street May 2010 Major Subject: Communication iii ABSTRACT Making Sense of Judicial Sensemaking: A Study of Rhetorical Discursive Interaction at the Supreme Court of the United States. (May 2010) Ryan Allen Malphurs, B.A., Regis University; M.A. Texas A&M University Chair of Advisory Committee: Dr. James Arnt Aune This dissertation engages previous research in political science and psychology by arguing for the importance of oral arguments from a communication perspective, examining justices’ rhetorical discursive interaction in oral arguments, introducing Sensemaking as a new model of judicial decision making, and discussing the legal and cultural impact of justices’ rhetorical discursive interaction in Morse v. Frederick, Kennedy v. Louisiana, and District of Columbia v. Heller. In contrast to the aggregate behavioral models and longitudinal studies conducted by political scientists and psychologists, this study examines these specific cases in order to gauge each justice’s individual interaction in oral argument and to determine how certain justices may have controlled the discursive flow of information within oral arguments, which in turn may have influenced the Court’s decision making ability. The dissertation begins with an introduction, providing an overview of the development and study of legal rhetoric from the Greeks to present day. A review of iv prior literature in law, political science, and psychology displays how fields outside of communication view oral arguments and reveals where communication may provide valuable contributions to the study of Supreme Court oral arguments. Theoretical and methodological approaches adopted for the study of oral arguments are discussed. Analysis within the dissertation begins with an overview of the inherent complexity found within oral arguments and applies the previously discussed theoretical and methodological approaches to the case of Morse v. Frederick as a means of determining theoretical and methodological validity. Following analysis of Morse v. Frederick, a second case, Kennedy v. Louisiana is analyzed to determine if similar results will occur. Final consideration is given to a third case, District of Columbia v. Heller, to understand whether justices’ behavior may deviate in more socially and politically sensitive cases. The dissertation concludes with suggestions for lawyers and judges based upon this study’s findings and makes recommendations to scholars for further areas of research. v DEDICATION To all those who have brought me to this point, most importantly my wife who is more responsible than any other for this accomplishment, because without her love, support, and wisdom this project would never have reached fruition. vi ACKNOWLEDGEMENTS I would like to thank my committee chair, Dr. Aune, and my committee members, Dr. C. Jan Swearingen, Dr. Charles R. Conrad, and Dr, Jennifer R. Mercieca, for their guidance and support throughout the course of this research. I also would like to thank two key individuals who welcomed me as a stranger into their homes. Spencer Gerrol and Kirit Radia both provided me not only with the essential element of housing during my stays in DC, but also friendship and valuable insight. I cannot thank both of you enough for your hospitality, friendship, and support. My research was also greatly assisted by Supreme Court advocate David Frederick, Jan Crawford Greenburg, the Georgetown Supreme Court Institute, The National Association of Attorney Generals, Oyez.org, and The Marshal’s Office at the Supreme Court of the United States. Thanks also go to my friends and colleagues and the Communication Department faculty and staff for making my time at Texas A&M University a great experience. I also want to extend my gratitude to the College of Liberal Arts and the Melbern G. Glasscock Center for their generous support. Thanks to those who helped hone my rhetorical skills and will continue to challenge me throughout my life: Sheridan, Paul, Jeff, Robert “The Wheel” Henderson, Justin Nicolace, Kate, Colin, Kris, and Michael Gottlieb. I owe a lifetime of gratitude to my mother, father, and grandparents for instilling the value of an education and for supporting me through the long path. Finally, and most importantly, thank you to my vii wife, for her love, patience, understanding, and support during this journey, especially those jobless months of writing. viii TABLE OF CONTENTS Page ABSTRACT.............................................................................................................. iii DEDICATION .......................................................................................................... v ACKNOWLEDGEMENTS ...................................................................................... vi TABLE OF CONTENTS.......................................................................................... viii LIST OF TABLES .................................................................................................... xi CHAPTER I INTRODUCTION: HISTORICAL DEVELOPMENT OF LEGAL RHETORIC AND SUPREME COURT ORAL ARGUMENTS ........ 1 Rhetoric and Oral Argument .......................................................... 4 Development of Oral Argument ................................................... 11 Modern Oral Argument.................................................................. 16 A Rhetorical Study of Supreme Court Oral Arguments ................ 23 II DO ORAL ARGUMENTS BEFORE THE SUPREME COURT MATTER?............................................................................................ 28 Legal Research............................................................................... 32 Limitations of Oral Argument ...................................................... 37 Influence on Decision Making Process.......................................... 39 Political Science Research ............................................................. 42 Psychology..................................................................................... 53 Communication ............................................................................ 57 Sensemaking................................................................................... 67 Sensemaking Pitfalls……………………………………………… 74 ix Page III NEW QUESTION: ORAL ARGUMENTS “MATTER,” BUT HOW? PROPOSING A THEORY AND METHOD TO CAPTURE THE MADNESS………………………………………………………….. 82 Why Sensemaking at the Supreme Court?..................................... 83 Theory of Judicial Sensemaking .................................................. 90 Preliminary Evidence of Sensemaking .......................................... 101 Critical Approach........................................................................... 105 Paradigm Approaches.................................................................... 122 Research Methods ........................................................................ 124 Conclusion...................................................................................... 129 IV ORAL ARGUMENTS MATTER BECAUSE . PRELIMINARY REVELATIONS OF METHOD AND THEORY ............................... 132 The Court’s Rhetorical Discursive Interaction............................... 133 The Justices’ Individual Rhetorical Discursive Styles ................. 152 Arguing about “Bong Hits 4 Jesus” ............................................... 165 Rhetorical Discursive Interaction in Morse v. Frederick............... 170 Quantitative Summary.................................................................... 178 Qualitative Analysis ..................................................................... 179 Conclusion...................................................................................... 191 V KENNEDY V. LOUISIANA A FIRST HAND OBSERVATION………………………………… . 193 Rhetorical Discursive Interaction in Kennedy v. Louisiana........... 198 Qualitative Findings……………………………………………... 205 Conclusion...................................................................................... 226 VI HISTORICAL REPERCUSSIONS OF JUDICIAL SENSEMAKING DISTRICT OF COLUMBIA V. DICK ANTHONY HELLER……........ 229 Background .................................................................................... 232 District of Columbia v. Dick Anthony Heller................................. 235 Qualitative Analysis....................................................................... 245 Conclusion...................................................................................... 249 VII CONCLUSION “SCALIA’S BIASED, WHO KNEW”……………………………... 263 x Page Broad Ranging Contributions……………………………………. 265 Responding to Criticism ............................................................... 276
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