Rhetoric and Discourse in Supreme Court Oral Arguments: Sensemaking in Judicial Decisions by Ryan A. Malphurs (review)

The impact of major United States Supreme Court decisions has been analyzed and critiqued by scholars across disciplines. Within communication studies, the rhetorical significance of such decisions is widely acknowledged. Although many communication scholars have studied the rhetoric of judicial decisions, Ryan A. Malphurs encourages scholars to see how rhetorical discourse within oral arguments impacts the process through which the justices make these decisions. In addition, Malphurs is concerned with the reputation of the Court and believes that communication scholars have an opportunity to provide insight that other disciplines cannot.

Rhetoric and Discourse in Supreme Court Oral Arguments: Sensemaking in Judicial Decisions shows how the Supreme Court justices are weakening the Court’s ability to uphold the Constitution, since the authority of the Court relies on the general public’s willingness to comply with its decisions. Malphurs argues that by using oral arguments to advance their personal commitments (what he calls “biased sense-making”) instead of recognizing their personal commitments while fully exploring all sides of the arguments presented (“deliberative sensemaking”), the justices are not reflecting the fair and equal consideration that is expected in the most public part of the Court’s decision making process. Malphurs begins with an open letter to the chief justice of the Supreme Court in chapter 1, delivers a historical summary and his research questions in chapters 2 and 3, explains the current theoretical and methodological approaches and introduces Sensemaking (capitalized to distinguish the model name from the earlier described actions) as an alternative in chapters 4 and 5, provides analysis of three case studies in chapters 6–9, and ends with suggestions and recommendations for strengthening the Court’s rhetorical authority in chapters 10 and 11.

In the letter to the chief justice of the United States that constitutes chapter 1, Malphurs asserts:

My task in the upcoming chapters is to present you with compelling evidence of communication’s dynamic importance and explain why controlling communication in oral arguments at the Supreme Court…is essential to fair proceedings, impartial consideration of cases, and ultimately, the Justice handed down by the courts.

(3)

While this is an ambitious goal, Malphurs states that “it does no harm to aim for the heart of the problem” (xvii). At a minimum, Malphurs is hoping this book emphasizes the importance of Supreme Court oral arguments to academic scholars and legal professionals. His analysis begins with chapter 2, which offers a historical summary of oral arguments to provide the context for understanding the driving research questions behind this study and speculates that communication scholars may have ignored the topic of oral arguments due to limited accessibility. However, he calls for rhetoricians, group communication scholars, and discourse analysts to see the importance of oral arguments and reminds his audience that along with firsthand observations, technology will soon offer video recordings of major cases for increased accessibility.

Chapter 3 defines the importance of oral arguments within the Supreme Court by describing the studies that have been done thus far and defining how Sensemaking fits into oral arguments. For example, other prominent decision making theories consider all nine justices as one decision making group, while Malphurs argues for the necessity of considering how each individual participates as part of the group. As individuals, Malphurs contends that biased sensemakers may negatively impact how other members of a group evaluate solutions, while a deliberative sensemaker would be aware that his or her communication may negatively influence how others understand a problem. This is highly relevant for oral arguments, as “the environment of oral argument [is a] significant site where the justices’ consideration of a case may be formed and finalized” (55). Chapter 4 further expands on the challenging environment of oral arguments and the dangers of biased sensemaking.

Chapter 5 identifies ethnography, rhetorical criticism, and discourse analysis as three areas of scholarship essential to understanding Sensemaking as a decision making process...