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The Supreme Court's Chief Umpire: Judging The View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Texas A&M Repository THE SUPREME COURT‘S CHIEF UMPIRE: JUDGING THE LEGAL RHETORIC AND JUDICIAL PHILOSOPHY OF JOHN G. ROBERTS, JR. A Dissertation by JAY MAURICE HUDKINS 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 August 2011 Major Subject: Communication THE SUPREME COURT‘S CHIEF UMPIRE: JUDGING THE LEGAL RHETORIC AND JUDICIAL PHILOSOPHY OF JOHN G. ROBERTS, JR. A Dissertation by JAY MAURICE HUDKINS 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, James Kevin Barge Leroy G. Dorsey Roy B. Flemming Head of Department, Richard L. Street August 2011 Major Subject: Communication iii ABSTRACT The Supreme Court‘s Chief Umpire: Judging the Legal Rhetoric and Judicial Philosophy of John G. Roberts, Jr. (August 2011) Jay Maurice Hudkins, B.S.E., Baylor University; M.A., Baylor University Chair of Advisory Committee: Dr. James Arnt Aune Many Supreme Court followers contended that Judge John Roberts entered his Supreme Court confirmation hearings as a ―stealth candidate‖ who lacked a paper trail the Judiciary Committee could vet to discern the interpretive approach, or judicial philosophy, to which Judge Roberts‘ subscribed. This dissertation used rhetorical criticism as a methodological approach for examining this claim. A close-reading of Roberts‘ law journal articles, his writings from his service during the Reagan and Bush (41) administrations, the text of his appellate court confirmation testimony and published opinions, and the text of his Supreme Court confirmation testimony and published opinions reveals that Roberts was not a ―stealth candidate‖ but instead a jurist who resolved constitutional, judicial, political, and statutory issues by incorporating components of originalism and positivism into his prudentialist judicial philosophy. The first two chapters of the dissertation provide the requisite background for the study. Chapter I discusses the challenges of the nomination and confirmation processes for Supreme Court Justices, and the chapter discusses the crucial powers that the Chief iv Justice possesses. Chapter II introduces readers to legal arguments, argument modalities, and judicial philosophies, and the chapter offers a new definition for the terms ―legal rhetoric‖ and provides a new methodology for studying judicial discourse. The subsequent chapters comprise the core of the study. Chapter III examines Roberts‘ law review articles and the letters, memoranda, and position papers he wrote while working for the Reagan and Bush administrations, Chapter IV investigates Roberts‘ appellate court confirmation testimony and his published opinions, and Chapter V investigates Roberts‘ Supreme Court confirmation testimony and his published opinions. Following a chronological approach reveals that Roberts consistently used certain argument types within corresponding argument modalities to formulate his argumentative strategies, and each chapter demonstrates that Roberts‘ adhered to a prudentialist interpretive approach to resolve constitutional and statutory questions. Finally, Chapter VI argues that scholars should examine judicial discourse from an interdisciplinary perspective and reevaluate their conceptions about legal rhetoric and rhetorical criticism. v ACKNOWLEDGEMENTS I would like to thank my committee chair, Dr. Jim Aune, for his sage advice about research, writing, and life as an academician. When I entered graduate school, I saw you as a teacher; as I progressed through the graduate program, you became my mentor; and as I leave the program, I consider you a true friend. I hope that one day my teaching, scholarship, and contributions to the communication and legal fields reflect that the best I have to offer, I owe in large part to you. I also want to thank my committee members, Dr. Kevin Barge, Dr. Leroy Dorsey, and Dr. Roy Flemming for their valuable comments regarding my dissertation. You offered constructive criticism, challenged me to think about new ideas, and forced me to consider new perspectives. Hopefully, the final project reflects that scholarship can be, and should be, an interdisciplinary and collaborative effort. Finally, I owe an enormous ―thank you‖ to the two most important people in my life. First, I owe a huge thank you to my wife, Danya Day. Throughout my struggles to finish my dissertation, you always gave me your encouragement, patience, support, wisdom, and most important, your unconditional love. My dissertation is finally complete because of you, and my admiration, appreciation, and respect for you grow stronger every day. Second, I owe a huge thank you to my son, Jackson. You joined me on my excursions to the library, worked with me in my office while I wrote, and sat in on my classes while I taught. Your laughs, hugs, and love during all of those made those vi times invaluable and provided me with memories I will always cherish. I‘m proud of the young man you‘ve become, and yes, you can now call me Dr. Daddy. vii TABLE OF CONTENTS Page ABSTRACT .............................................................................................................. iii ACKNOWLEDGEMENTS ...................................................................................... v TABLE OF CONTENTS .......................................................................................... vii CHAPTER I INTRODUCTION: CONFIRMATION BATTLES: THE STRUGGLE TO SEAT A SUPREME COURT JUSTICE ................. 1 John G. Roberts, Jr.: The Elusive Court Candidate? ...................... 8 The Confirmation Hearings: An Exercise in Futility? ................... 13 The Chief Justice and the Supreme Court ...................................... 32 Judge Roberts: The Newest Stealth Candidate? ............................. 56 Chief Justice Roberts: A New Conservative Court ........................ 64 II MAKING SENSE OF THE LAW: RHETORIC, ARGUMENTS, AND JUDICIAL PHILOSOPHIES ..................................................... 67 The Supreme Court and Rhetoric: Pejorative or Constructive? ..... 68 Rhetorical Criticism and the ‗Law and Rhetoric‘ Movement ........ 77 Argumentative Strategies in Judicial Discourse ............................. 84 Argument Schemes ........................................................................ 88 Philip Bobbitt‘s ―Argument Archetypes‖ ...................................... 91 The Historical Modality ................................................................. 94 The Textual Modality ..................................................................... 99 The Structural Modality ................................................................. 102 The Doctrinal Modality .................................................................. 103 The Ethical Modality ...................................................................... 106 The Prudential Modality ................................................................. 107 Bobbitt‘s Modalities and Rhetorical Criticism ............................... 107 Legal Argument ‗Types‘ ................................................................ 110 Argument from Analogy ................................................................ 112 Argument from Authority .............................................................. 115 Argument from Coherence ............................................................. 117 Argument about and from Definition ............................................. 118 Argument from Dissociation .......................................................... 120 viii CHAPTER Page Institutional Argument ................................................................... 121 Legal Argument ‗Types‘ and Rhetorical Criticism ........................ 123 Judicial Philosophies and Theory Disputes .................................... 123 Formalism ....................................................................................... 124 Realism ........................................................................................... 127 Positivism ....................................................................................... 132 Pragmatism ..................................................................................... 136 Originalism ..................................................................................... 140 Dworkinism .................................................................................... 144 Prudentialism .................................................................................. 149 Judicial Philosophies and Rhetorical Criticism .............................. 151 III IN TRAINING FOR THE ―BIG SHOW‖: ROBERTS‘ SERVICE IN THE REAGAN AND BUSH I ADMINISTRATIONS .................. 152 Roberts‘ Legal and Political Career ............................................... 152 The Pre-Administration Paper Trail ............................................... 155 The Paper Trail from the Reagan Administration .......................... 160 Wit and Wisdom ............................................................................. 161 Constitutional and Statutory Guidance .......................................... 172 Civil Rights, Take I ........................................................................ 173
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