"Tactics" and "trajectories": The argumentative resources of Supreme Court dissenting opinions

Jeffrey Lee Courtright, Purdue University

Abstract

Despite recent critical interest in legal discourse, few scholars have studied Supreme Court dissent. Using a modified Toulminian analysis and terminology of Michel de Certeau, a sample of 35 dissenting opinions written immediately prior to and following the Reagan presidency were analyzed. The results illustrate a variety of argumentative resources, apparently resistant to change during transitional periods, available to the dissenter. Both the microscopic and macroscopic levels of argument were studied. The microscopic level revealed similarities across dissents. Dissenters state claims and evidence in declarative terms. Moderating qualifiers only seem to enhance the factual character of declarative claims. Intense qualifiers predominate the discourse to distance the dissenter from the majority. The analysis also illustrated other tactics to increase that distance. No two dissents are identical in the use of reservations, warrant-using arguments, and warrant-establishing arguments. Three types of reservations function to refute the majority: traditional reservations, refutational reservations, and refutational qualifiers. The last temporarily accept a majority argument refuted earlier, only to attack the majority on another point. Warrant-using and warrant-establishing arguments, with the refutational types of reservations, perform a special office. De Certeau calls this function "poaching." Dissenters borrow argumentative material from the majority opinion and other sources. Together, the similarities found in claims, evidence, and qualifiers and the different resources displayed in reservations and warrants constitute "tactics" dissenters use to erode the "proper" of the Court. At the macroscopic level, de Certeau's concept of "trajectory" explains the textual dynamics of dissent. The dissent sample displayed four "trajectories": exclusion, casuistic stretching, brief dissent, and plastic. Choices of qualifiers, reservations, and verbs serve to expand, contract, or propose an alternative to the majority opinion's trajectory. Heretofore, jurists and commentators have assumed that dissents could be characterized by their prophetic tone and flamboyant language. This study suggests that the tactics and trajectories of dissent are instead indicative of a prophetic style. Moreover, the extension and interpretation of Toulminian analysis with the terminology of Michel de Certeau yield new methodological insights. These and other implications form the basis for a program of research on dissent that concludes the study.

Degree

Ph.D.

Advisors

Stewart, Purdue University.

Subject Area

Communication|Law|Political science

COinS