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14-2 Pinaire

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271 STRANGE BREW: METHOD AND FORM IN ELECTORAL SPEECH JURISPRUDENCE BRIAN K. PINAIRE† To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals? Into that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions. —Justice Benjamin N. Cardozo1 I. INTRODUCTION As Justice Cardozo frankly concedes in the epigraph, a wide range of concerns and options are implicated in the resolution of cases. Certainly precedent is sought and adhered to when possible (or sensible), but as Cardozo suggests, social norms, values, customs, and observations also play an essential part in structuring judicial outcomes. The result is a “compound” of “ingredients,” legal and extralegal2 in nature—a “brew” that both accommodates and exhibits the complexity of judicial decisionmaking. In this Article I provide a comprehensive analysis of the methods of evaluation, the primary modes3 of reasoning and rhetoric, employed by the † B.A., Whitman College, 1997; Ph.D., Rutgers University, 2003; Assistant Professor, Department of Political Science, Lehigh University. I would like to thank Milton Heumann, Elizabeth Garrett, and Emily Baird for their support of this research. This Article is dedicated to the late Wilson Carey McWilliams, who taught me by his own example how to be a professor, a mentor, and a friend and how to do so with grace and inspiration always. His truth is marching on. 1 BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 10 (1921). 2 See Lee Epstein & Tracy E. George, On the Nature of Supreme Court Decision Making, 86 AM. POL. SCI. REV. 323, 324 (1992). As the authors assert in their analysis of the impact of “legal” and “extralegal” influences on Supreme Court decisionmaking, “[i]n making choices between competing precedents, then, other factors are bound to come into play.” The notion that elements beyond legal texts, directives, and customs shape a judge’s understanding and articulation of various cases and controversies was famously acknowledged by Oliver Wendell Holmes, Jr., who asserted “[t]he life of the law has not been logic: it has been experience.” OLIVER WENDELL HOLMES, THE COMMON LAW 5 (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881). The “felt necessities of the time,” he contended, “the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” Id. 3 My use of the term “modes” is informed by Philip Bobbitt’s analysis of the evident “modalities” of constitutional argument, although my meaning is slightly different in this Article. See generally PHILIP272 Southern California Interdisciplinary Law Journal [Vol. 14:271 Supreme Court in its review of regulations on freedom of speech during political campaigns and elections. In this assessment of the Court’s electoral speech jurisprudence (comprising thirty-seven cases from 1947 to the present),4 I look both at the elements that structure the Court’s outcomes—the ingredients in this strange brew—and offer an explanation for why certain influences have greater significance than others. To return to Justice Cardozo’s concerns noted in the epigraph, I both examine the “sources of information” that are “appeal[ed to] for guidance”5 and explain why we see particular methods of reasoning and rhetoric employed over others within this body of law. What is it that leads the Court, or particular justices, to emphasize or appeal to certain methods over others? What is it that might lead the justices to depart from certain modes of argument and evaluation? A more detailed overview can be found in Part II of this Article, but in essence my argument is twofold. First, I demonstrate that four primary methods of reasoning and rhetoric (the Historical, Empirical, Aspirational,6 and Pragmatic7) are implemented in the evaluation of electoral speech cases and controversies. Second, I argue that the employment of the respective modes is correlated with the forms of “speech” in question—that is, whether the expression is that of a political activist, a candidate, a political party, a campaign donation, or some other type of speech or speaker. As I demonstrate in Part IV, there are intriguing patterns evident in these correlations between the method of evaluation and the particular varieties of speech involved. II. OVERVIEW OF THE ARGUMENT As I consider the methods of reasoning and rhetoric that shape the Court’s evaluation of electoral speech cases and controversies, it is worth recalling Justice Roberts’ famous opinion in United States v. Butler8 (the legal realists’ “whipping boy”), depicting the process of judicial decisionmaking as a strictly legal enterprise: When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty,—to lay the article of the Constitution BOBBITT, CONSTITUTIONAL FAT E : THEORY OF THE CONSTITUTION (1982) [hereinafter BOBBITT, CONSTITUTIONAL FAT E]; PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION (1991). 4 A list of the cases considered can be found in Appendix 1 infra. 5 CARDOZO, supra note 1, at 10. 6 My use of this label is influenced by Peter M. Shane’s use of term “aspirational,” suggesting a view of the Constitution “as a signal of the kind of government under which we would like to live, and interpreting that Constitution over time to reach better approximations of that aspiration.” See Peter M. Shane, Rights, Remedies, and Restraint, 64 CHI.-KENT L. REV. 531, 550 (1988). Although his argument was addressed to larger concerns (that is, the “morality of aspiration”), my


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