Book Review: Judging the Supreme Court: Constructions of Motives in Bush v. Gore.

Rountree, Clarke. Judging the Supreme Court: Constructions of Motives in Bush v. Gore. Rhetoric and Public Affairs. East Lansing: Michigan State UP, 2007.

Clarke Rountree's new book examines one of the Supreme Court's most consequential decisions: Bush v. Gore, the December 2000 opinion that ended the Florida recount and effectively handed the presidency to George W. Bush. As a scholar, teacher, and attorney, I recommend the book for three reasons. First, it shows the rich insights to be gained by applying Burkean methods (here, pentadic analysis) to legal discourse. Second, by positioning the Court's arguments in detailed contexts of motives in American jurisprudence, news reportage, editorialists' arguments, and scholarly debate, it offers a model for a close, careful rhetorical case study. Finally, it is structured and written in such a way that it should find a wide audience (beyond just Burke scholars) for Rountree's important arguments about rhetoric's role in creating and upholding the rule of law.

Rountree sets out to examine not only the various legal opinions in the case but also larger contexts and rhetorical agons using what he argues is the "overarching concern" of both (the many) critics and (the few) defenders of the High Court's decision: "the contested ground of judicial motives," or accounts of what the majority justices were doing and why (xiv- xvi). Rountree's claims about the importance of analyzing judicial motives through rhetorical methods deserve to be quoted at length:

An understanding of judicial motives is inextricably tied with constructions of what law is being followed, of what justice requires for parties (and the larger society) in a given case, of how larger contexts shape (or ought to shape) legal decision making, and other considerations that take us beyond narrow questions of what a judge was thinking in rendering a particular decision. An analysis of this expands beyond a narrow focus on individual motives to include jurisprudential considerations explored by many legal scholars, yet it goes beyond legal analysis in situating the issue of judicial motives within a larger framework of institutional legitimacy. It highlights, as standard legal analyses do not, that judicial opinions are rhetorical performances, that key to those performances are constructions of "proper" judicial motives, and that through rhetorical analysis, judicial motives can be teased out, their propriety assessed, and the quality of judicial opinions as rhetorical performances determined. (xv)

Rountree argues that if we are to understand and participate in the cultural myths of the rule of law and an impartial judiciary, then judicial opinions (especially in cases as deeply partisan and as momentous as Bush v. Gore) must be "rhetorical performances . . . constitutive of the political community" (xv).   Judging the Supreme Court reads as Rountree's plea and exhaustive evidence building a particular case: that when we examine accounts of what the Court did and why it did it, Bush v. Gore is not only a failed rhetorical performance but also corrosive of political community. Rountree argues that the Bush majority knowingly used weak legal rationales and improperly shaded its recitation of the material facts to end the recount for personal and partisan motives, rather than for the motives that the opinion itself constructed or that defenders of the result have offered (such as preserving order or preventing uncertainty about who would become president).

To build his case, Rountree structures the book in thirteen chapters. The first two chapters, along with the Introduction, lay the foundation for Rountree in later chapters to apply pentadic analysis to the majority and dissenting opinions, to news reports and editorials and--most importantly--to the accounts of judicial motives in the work of legal scholars. Early in Chapter One, Rountree argues that the characterization of acts "is the primary mode of judicial persuasion," yet characterization of acts is "strangely camouflaged" behind a "technical language of rules, precedents, holdings, dicta, and the like."  Rountree identifies ten different sets of acts that judicial opinions "construct, reconstruct, or embody"; these acts include the facts giving rise to the case, the parties' actions, lower court proceedings, kinds of legal authorities, competing opinions of justices deciding the same case, and others (7-10). At the end of Chapter One, Rountree introduces Burke's pentad as "a heuristic for exploring motives through discourse" and offers a four-step method for pentadic analysis: locate the relevant text (or multiple texts, as Rountree does with this "meta-analysis of motives"), specify the acts to be examined, analyze the pentadic ratios, and interpret the results (11-16). Chapter Two, entitled "The Road to Bush v. Gore," reminds readers of the crucial events of the battle for Florida's electoral votes, which would tip the contest in favor of either Bush or Gore should they prevail in that closely contested state. Chapter Two goes on to set the background for how the case ended up in front of the Supreme Court in the first place by summarizing the events of two Florida Supreme Court cases and the U.S. Supreme Court's 5-4 order staying the recount at a time when Bush held a razor-thin lead of a few hundred votes. Rountree's analysis of the rhetorical challenges of a stay order (a remedy designed to suspend court proceedings or other legal remedies for the purpose of preventing irreparable harm) is especially salient because pentadic analysis of the Court's order (and of Justice Scalia's response to the minority's dissent from it) in this case shows how the majority, from the outset, began to characterize Bush as the likely winner, the one who would suffer harm if the recount continued because he had a claim to the presidency and happened to be slightly ahead at the moment.

The road to Bush v. Gore having been traveled, Chapters Three and Four consist of extensive pentadic analysis of motives in the Court's majority, concurring, and (multiple) dissenting opinions. It bears remembering, as Rountree points out, that the Court's majority opinion was a per curiam ("by the Court") opinion, which matches the per curiam Florida Supreme Court decision it overturned, "matching camouflaged agent for camouflaged agent" (34). One effect of the unusual decision to render a per curiam opinion (usually reserved, as Rountree notes, for unanimous, summarily disposed cases [33-34]) was that the High Court's majority opinion operated scenically, with the individual justices taking action within that scene by writing concurring and dissenting opinions. Rountree analyzes how the justices, joined in a rhetorical agon, constructed the case's history, the applicable law, state court motives, the proper remedy to fashion, and their own (and one another's) motives to either support or challenge the court's intervention in the recounts and ultimate decision. Summary of these close, careful analyses would not do them justice, but what emerges from these chapters is a picture of judicial action as rhetorical through and through. While such a point will not surprise readers of KB Journal, Rountree is also clearly writing for larger, non-specialist audiences. I hope that the many law students whose libraries have purchased this book will have an enhanced understanding of judicial opinions as rhetorical, an understanding that enhances how law students learn to "think like lawyers" or "think like judges."

Chapters Five and Six examine how reporters and editorialists reconstructed the Supreme Court's action, a move that I consider important to the richly layered analysis that Rountree offers. Supreme Court opinions are, of course, not texts that average citizens read regularly. News and editorial reconstructions of the Court's action, especially in a case with stakes as high as Bush v. Gore, are crucial parts of the wider circle of how the cultural investment in the rule of law is built and perpetuated and how challenges to the legitimacy of the Court are examined. In particular, Rountree's analysis of how editorialists attempted to characterize the Court's acts as, for some, the deeds of noble jurists reluctantly stepping in to stop potential chaos or, for others, as a reckless and brazen attempt to decide the election, is especially salient.

Chapters Seven through Twelve, nearly half the total number of chapters in the book, are devoted to the arguments of legal scholars, many (but not all) of whom were, to understate it greatly, highly critical of Bush v. Gore as a cynical and terribly reasoned opinion. Rountree devotes this much space to scholarly arguments because, from the standpoint of constructions of motives, much of the lasting legacy of the Court's decision would play out in scholarly books and articles, written as they are using the twin advantages of "time and space" that academic writing enjoys (171). Rountree offers exhaustive analyses of how scholars reconstructed the stay order, how and why the Court reasoned out its decision, who (in terms of factors such as political motives of individual justices, the scene of the case as it came to the Court, past precedents, and attitudes) decided the case, when and where the Court decided the case, and Chief Justice Rehnquist's concurring opinion. Depending on their arguments about the opinion's reasoning, or effects on the rule of law, or propriety, scholars attempted to--as Burke has long helped us examine--emphasize particular pentadic ratios and downplay others.

The payoff for the first twelve chapters, besides their worth as pieces of rhetorical criticism and as models of pentadic analysis applied to a highly detailed case study, is the final chapter, "Judging the Supreme Court and its Judges." Rountree opens by arguing that while there is enough flexibility "in the structure of the grammar of motives" for supporters and defenders of particular judicial decisions to build "coherent stories," that flexibility has its limits. The limits come from "the interrelatedness of the grammatical terms and of one set of acts with other sets of acts," so that not just any story "can be convincingly constructed" (377). After being careful to note his own self-identified liberal political predispositions, Rountree sets out to offer what he contends is "the most coherent reconstruction of motives" for the Court in this case; that is, he mounts an argument about "what the Court was doing and why" (379).

In stark terms, Rountree argues that the majority justices, as some of the most brilliant and experienced legal minds in the country, knew or should have known that their arguments in Bush v. Gore were specious but nevertheless pressed ahead with ending the recount, "allowing purpose (ending the controversy and seating a Republican as president) to drive agency, rather than the other way around" (394). If the cultural myths of the rule of law and an impartial judiciary are to be upheld, argues Rountree, judicial discourse must at least muster the best arguments possible to construct court action as following the law rather than using the law as a fig leaf to cover a partisan and predetermined outcome (394). Tellingly, justices also must appear to follow their own self-fashioned judicial philosophies such as, in this case, the majority justices' earlier pronouncements about states' rights and judicial restraint (393). In this case, Rountree argues that there simply were no better arguments than the weak ones the majority offered, but the majority decided to press ahead anyway, knowing that damage to its stature and legitimacy resulting from the decision would likely be short-lived, at least in the minds of the general public. This sort of cynical and solely consequential construction of motives whereby the Court was, at best, willing to take a hit to its credibility in the name of preventing uncertainty about the election "essentially laughs behind the backs of Americans who believe in the rule of law" (403). Certainly, nothing in Justice Scalia's public statements about Bush, for example, would dispel a construction of motives concluding that the Court arrogated to itself the right to decide the election. For example, Scalia has stated, "I and my court owe no apology whatever for Bush v. Gore. We did the right thing. So there!" and "Get over it. It's so old by now” (Scalia). Of course, as Rountree notes, whether one considers the actual Bush presidency--as opposed to speculations about what a Gore presidency would have been--a fortunate or unfortunate outcome depends on one's political views (405-406). However, the main point of this final chapter of Judging the Supreme Court is that what the highest court in the land said it was doing and why are the very basis of judicial decision-making and thus will have consequences for how future cases are decided. When there are huge gaps separating quality legal arguments, justices' own stated judicial philosophies, and an opinion's self-fashioned construction of motives, the diagnostic and admonitory tools Burke provided, and which Rountree uses here, are needed urgently.

Work Cited

Scalia, Antonin. Interview with Leslie Stahl. 60 Minutes.  CBS. 14 Sept. 2008. Television.

Drew M. Loewe, St. Edward's University