Advances in the History of Rhetoric Oct 2012

Rhetoric, Rationality, and Judicial Activism: The Case of <i>Hillary Goodridge v. Department of Public Health</i>

Dave Tell ; Eric Carl Miller

Abstract

ABSTRACT This article considers the relationship between rhetoric and judicial activism. A term first coined by Arthur Schlesinger Jr. in 1947, the charge of judicial activism has become ubiquitous in modern political and legal discourse, frequently leveled at judicial opinions with which one disagrees. Despite focused attention from legal scholars in recent years, the term continues to defy easy definition. After surveying the relevant legal scholarship on judicial activism, this article considers a widely decried example of activism in action. Taking the 2003 case of Hillary Goodridge v. Department of Public Health as a case study, the authors examine the five judicial opinions, paying particular attention to how each justice justifies his or her decision with recourse to one of three rhetorical forms (legal analysis, the discourse of science, and public consensus). We conclude that the legitimacy of judicial activism is a function of particular rhetorical forms (and not others).

Journal
Advances in the History of Rhetoric
Published
2012-10-01
DOI
10.1080/15362426.2012.697681
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Topics
writing across the curriculum qualitative research multimodality

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Also cites 7 works outside this index ↓
  1. Asen (2009)
    Ideology, Materiality, and Counterpublicity: William E. Simon and the Rise of a Conservat…
    Quarterly Journal of Speech  ↗
  2. Bennett (2006)
    Seriality and Multicultural Dissent in the Same-Sex Marriage Debate
    Communication and Critical/Cultural Studies  ↗
  3. Gibson (2006)
    United States v. Virginia: A Rhetorical Battle Between Progress and Preservation
    Women's Studies in Communication  ↗
  4. Hasian (2001)
    Vernacular Legal Discourse: Revisiting the Public Acceptance of the ‘Right to Privacy’ in…
    Political Communication  ↗
  5. Hasian (1996)
    The Rhetorical Boundaries of ‘the Law’: A Consideration of the Rhetorical Culture of Lega…
    Quarterly Journal of Speech  ↗
  6. Kmiec (2004)
    The Origin and Current Meanings of ‘Judicial Activism.’
    California Law Review  ↗
  7. Rorty (1989)
    Contingency, Irony, and Solidarity
     ↗
CrossRef global citation count: 6 View in citation network →

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