Inventing the Rule of Law: A Rhetorical Analysis of U.S. Supreme Court Per Curiam Opinions

Abstract

The rule of law is the U.S. Supreme Court’s justification for action, and because of the authority given to the Supreme Court in U.S. legal culture, the Court’s speech about the rule of law shapes the lived experience of legal subjects. Per curiam opinions (per curiam meaning “by the court”) obscure the identity of the author of the opinion, and are used relatively rarely, indicating that this designation reserved for exceptional cases per curiam opinions, and for these reasons per curiam opinions can serve as limit cases for studying the rule of law. This dissertation conducts rhetorical analysis of three U.S. Supreme Court per curiam opinions in order to explore changes in the meaning of the rule of law: Brandenburg v. Ohio (1969), DeFunis v. Odegaard (1974), and Bush v. Gore (2000). The per curiam opinion in Brandenburg v. Ohio (1969) raised questions about the power of the courts to enact the law because the rhetoric of the opinion showed the law as correcting the Court’s mistaken decision in Whitney v. California (1927). The per curiam label, however, attributed responsibility for the decision in Brandenburg to the Court, thus creating conflicting accounts of where judicial power lies. In the Supreme Court’s DeFunis v. Odegaard (1974) per curiam opinion the rule of law appeared as a bureaucracy as procedural rules were used to trump substantive issues. The per curiam opinion may have aimed to make the opinion more palatable, but for some audiences it appeared as cover for darker motives. The Bush v. Gore (2000) per curiam opinion aimed to justify the Court’s involvement in the Florida vote for presidential electors, but the rhetoric was missing evidence and support. The per curiam label obscured the facts of authorship making it impossible to hold the author(s) accountable for the opinion, and for the kind of rule of law the opinion promoted. Comparing the rule of law in each of these opinions to the Court’s foundational Marbury v. Madison (1803) opinion makes it possible to consider whether these opinions use the “rule of law” to create the conditions of possibility for a deliberative democracy or whether the “rule of law” is used as an crude justification for authoritarian power.