The Rhetoric of Judging Well: The Conflicted Legacy of Justice Anthony M. Kennedy

Known as the “swing justice,” Justice Anthony M. Kennedy provided the key vote determining which way the Supreme Court would decide on some of the most controversial cases in US history. Though criticized for his unpredictable rulings, Kennedy also gained a reputation for his opinion writing and, more so, for his legal rhetoric. This book examines Justice Kennedy’s legacy through the lenses of rhetoric, linguistics, and constitutional law. Essays analyze Kennedy’s opinion writing in landmark cases such as Romer v. Evans , Obergefell v. Hodges , and Planned Parenthood v. Casey . Using the Justice’s rhetoric as an entry point into his legal philosophy, this volume reveals Kennedy as a justice with contradictions and blind spots—especially on race, women’s rights, and immigration—but also as a man of empathy deeply committed to American citizenship. A sophisticated assessment of Justice Kennedy’s jurisprudence, this book provides new insight into Kennedy’s legacy on the Court and into the role that rhetoric plays in judging and in communicating judgment. In addition to the editors, the contributors to this volume are Ashutosh Bhagwat, Elizabeth C. Britt, Martin Camper, Michael Gagarin, James A. Gardner, Eugene Garver, Leslie Gielow Jacobs, Sean Patrick O’Rourke, Susan E. Provenzano, Clarke Rountree, Leticia M. Saucedo, Darien Shanske, Kathryn Stanchi, and Rebecca E. Zietlow. Contents Acknowledgments Introduction Part 1 Judgment in Classical Rhetoric 1 Justice Kennedy and the Interpretation of Legal Texts: The Classical Background 2 Sex and Moral Pollution in the Rhetoric of Justice Kennedy Part 2 Judgment in Stasis Theory 3 Justice Kennedy’s Definitional Construction of Gay Rights in Lawrence and Obergefell: Legal Rhetorical Analysis with the Interpretive Stases 4 Justice Kennedy, Natural Liberty, and Classical Stasis Theory: Advancing Free Speech with Rhetorical Knowledge and Interpretive Argumentation 5 Romer v. Evans: Justice Kennedy, Justice Scalia, and the Rhetoric of Judging Well Part 3 Judgment in Contemporary Rhetorical Theory 6 Constructing a Free Agent: “Good Judgment” in Justice Kennedy’s Lawrence v. Texas Opinion 7 Justice Kennedy and Natural Law Argumentation 8 Justice Kennedy, Federalism, and the Nonproduction of Rhetorical Knowledge Part 4 Judgment and Justice Kennedy’s Ethos 9 Justice Kennedy’s Free Speech Optimism 10 Strongmen and Neurotics: Visible Struggle and the Construction of Judicial Ethos 11 The Anticlassification Topic and Equal-Liberty Template Part 5 Justice Kennedy’s Misjudgments: Women, Race, and Immigrants 12 Performing a “View from Nowhere”: Justice Kennedy’s Denial of Embodied Knowledge 13 Women in Justice Kennedy’s Jurisprudence 14 Justice Kennedy’s Anticlassification Doctrine: Not Judging Well 15 Whose Freedom? Justice Kennedy’s Sovereignty, Autonomy, and Liberty Discourses in the Immigration Cases Part 6 Assessment 16 Rhetorical Vision and Judgment: Did Justice Anthony M. Kennedy Judge Well? List of Contributors Index of Cases Index of Names and Subjects