7.2 Defining the Shadow Docket

Typically, the Supreme Court cases that garner attention are those on the merits docket, wherein parties are granted a full hearing and consideration before the Supreme Court, a process that includes a full spate of briefings, oral arguments, and publicly issued decisions of the Justices’ votes, including lengthy opinions explaining the reasoning and justifications for their conclusions (Black & Brannon, Reference Black and Bannon2022; Vladeck, Reference Vladeck2023, p. 3). The Court’s merits docket is published and accessible, as are all the briefs filed in relation to the cases.

In contrast, Baude, a law professor and former law clerk to Chief Justice Roberts, defined the Court’s shadow docket as “a range of orders and summary decisions that defy its normal procedural regularity,” including summary decisions, emergency stays (of a lower court’s ruling), and injunctions (wherein the Court restrains a party instead of a court) (Baude, Reference Baude2015, p. 1). The shadow docket encompasses the large amount of Supreme Court work that issues a ruling without full briefings or oral arguments (Vladeck, Reference Vladeck2019, p. 123). Such decisions are often unsigned and without reasoning attached. These non-merits judicial acts are not new, but the frequency, scope, and significance of their orders has grown exponentially over the past decade, as well as the frequency of publicly issued dissents from Justices regarding the decisions made. The American Bar Association reports that while only eight emergency relief applications were filed during the Bush and Obama administrations combined (2001–2017), averaging about one every other year, thirty-six applications were filed during the four years of the Trump administration (O’Connell, Reference O’Connell2021).

The potential harms of non-merits Supreme Court decisions have been criticized for decades (Hartnett, Reference Hartnett2016). Legal scholars have warned about the “managerial or executive character” of summary decisions, rather than the dialectical character of judicial tribunals, since at least the 1950s (Brown, Reference Brown1958, p. 94). Steve Vladeck makes it clear that recent concerns over the shadow docket are not so much about their procedural illegitimacy – the Supreme Court has broad authority to intervene without having to await any rulings. Rather, the concern lies with the increasing frequency with which Justices use it for constitutionally significant questions; the Court’s disregard for restraint, a primary source of this non-elected institution’s credibility; the lack of respect for lower courts, which are more in touch with local goings on; and the abandonment of the legal reasoning that provides decision-making tools for lower courts, policymakers, and future merits cases (Vladeck, Reference Vladeck2019, pp. 127–128). Emergency applications provide a way for litigants to bypass the sometimes years-long process of gaining a full merits hearing before the Supreme Court, or to freeze a lower court’s ruling, either skipping stages of appeal or running out the clock on time-sensitive issues such as elections and death penalty cases. Finally, and most importantly to this chapter, the trust and legitimacy of the Supreme Court is undermined when controversial or far-reaching cases are decided in private and without full briefing. McFadden and Kapoor (Reference McFadden and Kapoor2021, p. 828) argue that we are in a “new era of litigation, in which securing emergency interim relief can sometimes be as important as, if not more important than, an eventual victory on the merits.” The lack of transparency innate in these cases, as well as the capacity to drastically change the trajectory of public policy or even electoral processes without hearings or deliberations, led the House Judiciary Committee to hold a hearing on shadow docket practices in February 2021.

Shadow docket decisions have the potential to alter existing doctrine and the scope of the Constitution without the substantive reasoning that normalizes doctrinal change through acceptable legal reasons. This is true even when Justices attach reasoning to their decisions in a per curiam opinion – meaning the unsigned, collective ruling of an appellate court. A brief review of an important shadow docket case shows how. This analysis will foreground the truncated or missing topoi of legal argumentation, as well as impoverished or missing artifacts that merits-based Supreme Court opinions offer. Perhaps because the norms of legal opinion writing are not binding on these cases, Justices writing the per curiam holding are liberated from the constraints that bind them in signed, merits-based decisions. Yet the liminal space created between a summary judgment without opinion and a full merits decision raises several rhetorical problems, especially in cases of controversy: a lack of transparency on why it was granted, raising the specter of political motivations; a notable and contentious lack of agreement between Justices on both the holding and the interpretations; and the pseudo-precedential treatment of the resulting shadow docket decisions, both by lower courts and the Justices themselves.

7.3 Classical Roots of Contemporary Legal Writing

The art of finding all the available means of persuasion in order to fruitfully choose the best tools to craft the best messages to suit the particular moment, audience, and context is broadly known as the rhetorical invention process. Accomplished rhetors consider the knowledge levels and existing beliefs of key audience members, useful analogues to the present situation, expectations of institutions and culture, and existing starting places of similar arguments, or topoi, before crafting messages that best appeal to audience and moment.

Rhetorical invention has formed the basis of legal decision-making for centuries. Justices examine the inventional topoi, or rhetorical starting places of argument (topoi literally translating into “places”), both as the bases for original solutions to unique problems and for their value as legal precedent. In doing so, they blend utilitarian and creative qualities of rhetoric into their written opinions. Those opinions include both the legal conclusion itself “so ordered” and the corresponding reasoning that supports it (Scallen, Reference Scallen1995, p. 1722). Justices “showing their work” can also be seen as an act of deliberative fidelity – both voluntary and important to our belief in democratic processes, wherein political actors are guided by “good reasons” and beholden to their publics, at least rhetorically (Fisher, Reference Fisher1987; Perelman & Olbrechts-Tyteca, Reference Perelman and Olbrechts-Tyteca1969). Judicial opinions are more than just holdings: They are “claims of meaning,” constitutive documents that characterize both speaker and auditor (White, Reference White1995, p. 1363). Judicial opinions are part of a centuries-long tradition of legal decisions, and contemporary legal discourse builds on classical traditions for inventional topoi, self-deliberation and dialectic reasoning, and reliance on input from non-technical audiences.

Aristotle’s Rhetoric (Reference Aristotle1991), and subsequently Cicero’s On Invention (Reference Cicero1949), mapped a complex relationship between philosophical dialectic and situation-specific rhetoric that held heavy implications for legal rhetoric then, and now. Aristotle defined rhetoric not merely by its persuasive effect but also by its inventional tools to aid in discovery and judgment. Abstract principles of justice established by laws may, in their abstraction, become incapable of speaking to the nuance of specific situations if one does not allow for the situation-specific argumentative forms of rhetoric, which bring equity to the justice of laws. Topoi were at the situational center of rhetorical reasoning: The rhetorical commonplaces both reflected cultural habits of knowing, reasoning, and believing and motivated new forms of knowing through their combinations and application to novel situations.

As common laws became codified and the principles behind them came into question, Roman legal arguments focused on the dialectical features of argument (Scallen, Reference Scallen1995, pp. 1728–1729). With the changes in the law courts came early judicial writing, which divided between a praetor, who would craft the pleadings into a formula similar to jury instructions; a iudex, a lay arbitrator who would decide questions of both law and fact; and jurists, who rendered advice to both litigants and praetors and published treatise-like commentaries describing the resolution of real and hypothetical problems (Wald, Reference Wald1995, p. 1371).

The contemporary US analogue is more symbiotic; temporally, between past and present opinions of a longstanding magistrate body (the Supreme Court), where current Justices turn to earlier opinions (precedents) and doctrinal principles established over time and multiple cases; hierarchically, between the Supreme Court and lower appellate courts, where the former offers rules and advice on how to interpret and apply existing laws; and finally, between spheres of argument, through dialectic engagement between Supreme Court Justices, the parties to the case, interested third parties who may also file briefs (called amicus briefs), and public arguments that serve as the cultural and linguistic tapestry from which legal discourse draws its threads.

7.4 Inventional Topoi in Supreme Court Arguments

When the Supreme Court grants certiorari to review a case, it proceeds through an inventional process that mirrors classical rhetorical invention in many ways. Individually and collectively, Justices search for appropriate starting places – or topoi – on which to build an acceptable justification for the final opinions. The topoi will vary in significance and applicability depending on the specifics of the case, and successful topoi will generally reflect the audiences’ values and beliefs, the institutional parameters for argument, and the particulars of the situation surrounding the controversy.Footnote ² These topoi include facts of the case (as asserted by parties, amici, and external sources); constitutional principles and doctrines, both previously used and newly interpreted; important precedents based on previous decisions of the Court; and legislative and regulatory histories (Alexy, Reference Alexy1989, pp. 18–19; Carr, Reference Carr2018, pp. 113–119).

Before the written decisions are published, Justices’ chambers also consider the contemporaneous arguments of fellow Justices and various publics as essential topoi, providing important context, meritorious counter-arguments, and pathways to acceptable arguments both inside and outside the Court. They do so because, for all of its jurisprudential-specific topoi, Supreme Court decisions lose their rhetorical power and moral force when they fail to take in, and address, public arguments. Perelman (Reference Perelman1963) posits that all successful argument – legal and non-legal alike – proceeds from “that which is accepted, that which is acknowledged as true, as normal and probable, as valid agreement”; and because of that, it thereby “anchors itself in the social, the characterization of which will depend on the nature of the audience” (Perelman, Reference Perelman1963, p. 156). Studies on judicial reasoning indicate that “Supreme Court inventional strategies both reflect and help create cultural norms, particularly those that govern institutional ethics and the ostensible grounds for institutional decision making” (Makau & Lawrence, Reference Makau and Lawrence1994, p. 191). Public audiences expect more than merely legally valid decisions; they expect the Court to speak to urgent social needs and questions, and to protect nonlegal interests (Makau, Reference Makau1984, p. 382).

For all of the particularities and field-specific topoi of legal argumentation, then, these features do not separate the practice entirely from general practices of argument; nor does the focus on legal audiences negate the need to consider more general audiences. Even given the constraining features of legal justification, “the actual process of justification or deliberation should proceed (and in ideal cases does indeed proceed) according to the criteria of general practical discourse, and that legal justification only serves as a secondary legitimation of any conclusions arrived at in this way” (Alexy, Reference Alexy1989, p. 19).

Even as they write their final opinions, Justices do more than answer the question(s) before them; they also construct the rhetorical resources necessary to form an acceptable legal judgment. These include the building and maintenance of the Court’s authority; specific constructions of history that support and even naturalize the outcomes that the opinion argues for; and maintaining and building upon certain features of legal culture that confer institutional legitimacy and legal decision-making (Carr, Reference Carr2018). This is where the increasing number of, and more substantive, cases taken up in the shadow docket are particularly damaging to legal discourse. Shadow docket decisions fail both to show their work – demonstrating for audiences which topoi most significantly shaped the decision, and why – and fail to build and affirm legal topoi for future Supreme Court decisions and for lower courts.

An important consideration of all Supreme Court decisions – merits cases and shadow docket alike – is what, exactly, the Court is trying to produce. Producing a cogent written decision about a particular case is not the only goal of Supreme Court invention. Of the same inventional tools, the Supreme Court uses written opinions to construct and maintain its own authority and to maintain the forms, authority, and logic of the broader legal culture. These constructions are necessary to the internal logic of the opinions, and they form the basis for public acceptance of the Court’s decisions in particular cases as well as the Court’s legitimacy on the whole. Justices construct these artifacts through both showing and doing. That is, they construct these resources both through their particular arguments and through the performative display of their roles through the form, structure, and institutional expectations of written opinions.

7.5 Analysis of Roman Catholic Diocese of Brooklyn v. Cuomo (2020)

Roman Catholic Diocese of Brooklyn v. Cuomo (2020) challenged COVID-related restrictions on gatherings based on the prevalence of cases in neighborhoods, which included limitations on houses of worship. The applicants posited the constitutional harm in question as the Free Exercise Clause of the First Amendment. The Court had previously rejected a COVID-restriction injunction application from California – South Bay United Pentecostal Church v. Newsom (2020) – on similar grounds. In South Bay, plaintiffs asked the Supreme Court to stop an executive order that temporarily placed restrictions on public gatherings, including limiting places of worship to 25 percent building capacity or 100 attendees, whichever was less. In a 5–4 vote, the majority of the Court declined to intervene in South Bay. Chief Justice Roberts penned a two-page concurrence with the denial order, finding that the executive order treated places of worship similarly to other secular gatherings that held similar risk, that local governments need flexibility to rapidly address the (still very new) pandemic which had no cure or vaccine, and finally that the application did not meet the very high standards for injunctive relief, including “indisputably clear” unconstitutionality. Three of the four Justices who would have granted the injunction (Kavanaugh, Thomas, and Gorsuch) joined for a three-page dissent from the Court’s denial of relief, asserting that because some secular businesses, less constitutionally protected than places of worship were, were subject to looser restrictions, then the executive order clearly violated the Constitution and was furthermore irreparably harmful to worshippers.

Months later – after Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett – the Court granted the emergency injunction application regarding a COVID-restriction executive order in New York. The New York order established rules based on prevalence of COVID cases in neighborhoods. In high-infection “red” zones, houses of worship were limited to 25 percent or ten people, whichever was fewer. Other “non-essential” secular businesses were closed altogether, treating religious gatherings more leniently than other non-essential organizations, but more strictly than “essential” secular businesses. The Roman Catholic Diocese of Brooklyn and the Agudath Israel Synagogue filed separate suits, asking for an emergency injunction against the order, and arguing that the order violated the Free Exercise Clause by singling out religious gatherings. Both the district court and the Second Court of Appeals declined, citing Roberts’ reasoning in South Bay for declining injunctions of this sort amid COVID – except for lower court dissenters, who argued that the executive order violated the Free Exercise Clause because it was more restrictive on houses of worship than on essential secular businesses. The Supreme Court dissenters from South Bay maintained their same positions in Roman Catholic Diocese v. Cuomo, and this time Justice Barrett joined them to form a majority.

The following analysis will explore the fault lines that appear in rhetorical output when Justices attempt to mirror the form and structure of a merits opinion without the full inventional process that supports it.

7.6 Conclusion

At first read, Roman Catholic Diocese v. Cuomo (2020) offers substantive engagement between Justices about matters of public import, referencing judicial topoi of facts of the case, precedents, and established doctrine. The structure of the injunctive holding allows for both concurrences and dissents, allowing engagement between the Justices. The proclaimed temporal orientation is temporary in nature, to be negated after a full-court merits review, should that come to be. So what’s missing, and what are the consequences for the artifacts of legal invention?

First, we miss public arguments. Shadow docket cases do not solicit amicus briefs, do not hold oral arguments, and rarely even have time for meaningful conferencing and rounds of draft opinion between the Justices and their clerks. The public is invited take the Court’s word for it, because it isn’t required to consider or answer to public arguments. In cases like Roman Catholic Diocese v. Cuomo, where regional contexts make the appellate court the appropriate body to hear the case, granting emergency injunctions and stays usurp local voices in favor of federal dictate. Because of the proclaimed need for expediency, Justices can wave off the need to fully articulate the arguments of the parties – as Justice Sotomayor critiqued Justice Gorsuch for, when he chose not to engage with what makes houses of worship different, based on scientific evidence provided in the party record – namely that shouting and singing while gathered together for lengths of time was a leading cause of group COVID spread.

The Supreme Court always has greater responsibilities than the case at hand, even when those cases are urgent and time specific. It must consider the impact of its decisions on future similar cases and provide a roadmap for lower courts and policymakers. And it needs to show that it fully considered them, especially if it is altering its approach to future similar cases in any way. Here, the new majority of the Court used a non-live emergency injunction to move the doctrine of the Free Exercise Clause in ways that it refused to do on the merits docket. And in the immediately following shadow docket cases, the Court has also demanded that lower courts treat its per curiam decision as the same level of precedent as a merits case. Vladeck traces the sequence of shadow docket cases to conclude that the Justices seem to have “preferred to make significant new constitutional law on the shadow docket rather than through the regular – if laborious – procedure of a merit case” (Vladeck, Reference Vladeck2022, p. 737, emphasis in original). Regardless of the Court’s intent, the impact lowers the inventional burden of the Justices and impoverishes its results for legal and public audiences alike.

Such a system also loses several important artifacts of legal opinions, with grave implications. The first, and probably the most important, is authority. Lawyers and lower appellate court judges could not evoke the past as authority, an act which “seems to require the existence of a judicial opinion, or something like it” (White, Reference White1995, p. 1366). One might intuit the Court’s thinking, but one cannot explicitly model it on the Court’s reasoning. Opinions “invite lawyers and judges in the future to think and speak as it does” (White, Reference White1995, p. 1366). Opinions characterize. Through their characterizations, audiences (legal and public alike) can judge those characterizations, can trace the contours of the reasoning and decide whether the reasons are generous, dubious, well-supported, or contrary. They engage in a conversation with a reader, and invite the reader to follow them. Future auditors can cite moments of characterization as reasons that they, too, characterize the law in particular ways, and they are evoking a foundational premise of legal argumentation when they do so: an appeal to authority.

The lack of opinion also silences critique in ways that impoverish legal reasoning. White argues, “the criticism of opinions, on all grounds – rational, political, moral – is an essential part of law” because it is the only way that others can “argue for or against the continued authority of a particular opinion or line of opinions” (White, Reference White1995, p. 1368). Of course, the goal of a judicial opinion is to issue a result. But White emphasizes the importance of having both, for it matters that both the reasoning and result be sound: “There is a profound relation between them, because the right ‘style’ or the right mode of reasoning will over time lead to the best results” (White, Reference White1995, p. 1368).

Herein lies the concern with contemporary shadow docket cases that engage substantively with constitutional decision-making, without the expectation of oral argument, conference meetings, draft opinions wherein Justices wrestle with complexities, and a full-throated opinion of the Court sturdy enough to build doctrine upon. White used the Greek legal system as an example of what the law would look like if it were something that judges just performed, and did not explain: as in Athens, with no judges, juries of hundreds, no deliberation, no reliable way of evoking precedent, and no appeal. What the Greek legal system had lacked in material law, it compensated for with the “cheerful simplicity of the infant state” (Greenidge, Reference Greenidge1971, pp. 3–4). Supreme Court shadow docket opinions behave similarly, assuming a “because I said so” model of jurisprudence that does nothing to further legal reasoning, instead asking lower courts to behave as Greek citizens did before juries – adopting arguments that seem to work, without knowing or concerning themselves with the reasons.

8.2 Vico’s Sensus Communis: Communal, Rhetorical, and Prerational

Giambattista Vico was a professor of eloquence at the University of Naples from 1699 to 1741. There he trained university students to qualify in law, the practice of which was markedly different from our own. During Vico’s time, Naples’ legal system did not have a written code and wouldn’t until 1806. Thus, for Vico’s students the practice of law would have required arguing from precedents and customs that were predominantly preserved in oral tradition (Schaeffer, Reference Schaeffer1990, p. 47). Beyond being able to recall and draw on copious amounts of information to make connections and argue for their clients, legal practitioners had to be able to think quickly, as criminal trials often occurred within twenty-four hours of arrest. To prepare students for this oral, adversative practice, Vico trained them in eloquence, modeled after the ancient Romans. Vico saw the ability to invent arguments, drawn from tradition and common opinion, as critical not only to the practice of law but also to participation in public life.

Though this was the tradition in which Vico taught and his students practiced, Cartesian thought was challenging that tradition and the constitution of Naples’s legal system. Reformers sought to enact a legal code based on abstracted reason, unencumbered by common opinion and history. As John Schaeffer (Reference Schaeffer1990, p. 52) relates, in “substituting Cartesian rationality for consensus the reformers were able to shift the whole basis of legal theory from tradition to the present.” Vico was concerned with the way the Cartesian method, as employed in the push to codify law, would vacate the communal and historical aspects of law. He feared that the more specific and detached the legal codes, the less those arguing legal cases would have to reference general values and public interest. When law is a highly technical matter in which each particular instance is contemplated and addressed by code, there is no need to refer to community values or to history, as all is spelled out and available for private manipulation. In his version of Roman history, Vico (Reference Vico2018, p. 69) decries the point when the citizens came to realize that “law was nothing but their private self-advantage, and stopped taking an interest in the common welfare.” It was because Vico saw codification as abstracting law and removing it from the realm of public good that he resisted it.

Thus, under pressure from Cartesian reformers, Vico set out to defend his method of education and the common law system currently in place in Naples. It was in the midst of this conflict that Vico formed and refined his unique conception of sensus communis. While sensus communis translates to “common sense,” Vico’s understanding of the term far outstrips that translation and is in stark contrast with notions of common sense circulating at Vico’s time (Bayer, Reference Bayer2008; Schaeffer, Reference Schaeffer, Jost and Olmsted2004). Vico’s sensus communis is inherently rhetorical, communal, and prerational. In contrast, Descartes’ bon sens (good sense) is the individual’s faculty for directing the mind from simple to more complex ideas, using binomial thinking to get there. While with Descartes’ bon sens, history, common opinion, and the thinker’s embeddedness in these things falls away, Vico’s sensus communis is wholly dependent on them.

Vico (Reference Vico2018, p. 13) first defined sensus communis as “the standard of practical judgment” and “the guiding principle of eloquence.” When he says that sensus communis is the standard for practical judgment, he means that this common fund of values is that from which we “make sense” of the new. Presented with a new case, the orator must draw comparisons and craft metaphors that ring true and that are rooted in the community and its past. This is because the audience is necessarily embedded in the sensus communis and so too is the rhetor.

While Aristotle’s doxa, understood as common opinion, bears some resemblance to Vico’s sensus communis, Vico’s later elaboration of sensus communis as historically bound, linguistically embedded, and inescapable distinguishes it from that earlier concept. For Vico, sensus communis is foundational to human affairs. Indeed, in The New Science, Vico sought to explain the historical origins of the sensus communis and what we take to be natural law, which, for him, was a rhetorical phenomenon, not a philosophical one (Schaeffer, Reference Schaeffer2019). Vico writes in The New Science that sensus communis is “judgment without reflection, sensed in common by a whole order, a whole people, a whole nation, or the whole of humankind” (Vico, Reference Vico2020, p. 142). He posits that the sensus communis emerges from a community’s historical and ongoing confrontation with “human necessities and advantages” (p. 141). As the community confronts these circumstances, it necessarily develops new assumptions, decisions, institutions, and values (sensus communis). Notably, these things are not the product of isolated philosophic consideration but are developed ad hoc, out of necessity and in response to pressing needs. As new “necessities and advantages” present themselves, the sensus communis continues to be both the basis of judgment and the result of the struggle. Thus, the sensus communis is a force for measured, history-bound change. As Schaeffer explains, when communities confront novel circumstances, they must engage in both “linguistic inventiveness [and] social innovation so that new solutions [are] acceptable within the terms of the sensus communis” (Schaeffer, Reference Schaeffer2019, p. 100). Importantly, then, common values aren’t merely conveyed through language, they are embedded in language and its rhythms and affective force. And those values aren’t derived from philosophical confrontation but from necessity. For Vico, as Schaeffer (Reference Schaeffer2019) understands him, a community doesn’t set out to determine and define its values. Those values (the sensus communis) are forged through necessity – through confronting complications and attempting to resolve them. Thus, they form before rational judgment (and become, themselves, the basis for judgment). As Schaeffer (Reference Schaeffer2019, p. 74) writes, for Vico “values and assumptions [are] sedimented in language itself, even beyond conscious apprehension.” So, language, custom, and institutions arise from a community’s perceptions, its needs, and its responses to those things. What has been created must always control future perception and response, though literacy – the ability to reference and analyze the thoughts of the past – opens all of that up to more reflection and contemplation.

8.3 Sensus Communis and Our Law

Vico’s insights about sensus communis are helpful in situating legal texts and their authors. Generally, a rhetorical orientation toward law presumes that law itself is rhetorical (neither an isolated system of rational thought nor an impenetrable exercise of power) and that law and culture necessarily inflect each other (and, in some ways, cannot be neatly separated) (Hasian Jr. et al., Reference Hasian, Condit and Lucaites1996). It rejects the notion that law can be scientized in the way the reformers of Vico’s time had hoped it could be. What Vico’s notion of sensus communis adds is a particular appreciation for the way that any given legal claim, creation, or resolution (for example, a citizen’s invocation of their constitutional rights, legislation, a court opinion) is a product of history and of its time and that the very language used is necessarily derived from and directed toward the sensus communis. Law is communal and reactive. Legal thought, reasoning, and language are necessarily tied to the histories and conflicts that forged them. There is no legal thought, no legal principle outside the sensus communis. The sensus communis is the metric by which we wage and evaluate legal claims, and the resolution of those claims is subsumed into that sensus communis. Thus, Vico’s sensus communis reminds us that law and its language are not “above” the conflicts that emerge in and over the sensus communis; to the contrary, they are necessarily a part of them. Law is bound to and bound up in the sensus communis not just in terms of values but in language and expression – eloquence itself.

Of course, Vico’s sensus communis poses some difficulties if we understand him to mean that the values embedded in the sensus communis are universal, settled, and durable. Given Vico’s preoccupation with the evolution of sensus communis and the linguistic inventiveness required to evolve that sensus communis, I don’t take that to be his meaning. Rather, I understand him to be relating something similar to what Marianne Constable (Reference Constable2014) does when she writes that law’s language binds us. Constable, in contrast to those who would construe legal speech as directed at a distant state, argues that all legal claims are directed to the we of law. Law is fundamentally about our being and living together; its language binds us together and is a means by which we shape (and contest the shape of) that communal undertaking. It is precisely for this reason that people turn to law to consider and challenge the assumptions and values which seem to undergird our living together (as Vico would have it, our sensus communis). Law is the official language of our communal enterprise and is invoked and contested on these grounds. Constable (Reference Constable2014, p. 134) writes, “Claims of injustice or of justice made in the name of law recall hearers to what a speaker takes, perhaps mistakenly, to be the common practices and judgments of the two or, rather, of the ‘community’ to which they both belong.” This certainly doesn’t mean that law is always reflective of community values. Rather, because law, by design, binds us together, it is necessarily a powerful avenue for contesting the substances of those bonds.

Law does, in its way, acknowledge that it is a site and means of contest. But the scientized notion of law, which infects law now just as it did in Vico’s time, suggests that law already contains all the answers when, in fact, Vico’s notion of sensus communis shows us that this isn’t true. There are always new “necessities and advantages,” and this is why the sensus communis necessarily evolves. That we share this law in common and that it is supposed to address our universal principles and values binds us together and requires our constant negotiation of our law and our world. Legal pleas and resolutions are directed toward the sensus communis from the sensus communis. This doesn’t mean that everybody agrees. It means that we have a sense of shared institutions and values. The assessment of what those are may be faulty, but the sense of them and the drive to cohere those shared values is still there, as is the language in which they are embedded. Thus, at the point of legal contest, we find ourselves both awash in the sensus communis and engaged in the negotiation of it.

Like the rest of us, judges are not above the sensus communis in which we find ourselves and toward which we direct our arguments. Judges and Justices can guess at, but cannot know, what will seem common, fanciful, or banal decades from now. Relatedly, they cannot predict the turns in language, as the standard of judgment, that will accompany those changes. They, like we, inhabit the sensus communis and its attendant language. According to Vico, we cannot escape the sensus communis in which we find ourselves. In fact, we aren’t even able to see how common it is until after the fact. That poses a difficulty for those writing precedent with the idea that it will be precedent. Authors cannot know the new cases that will arise or the shifts in the sensus communis that will have occurred by the time those conflicts arise. Similarly, while judges and Justices can be attentive to and precise with their language, they cannot predict how language will shift to accommodate new values and necessities. If the sensus communis is embedded in language itself, authors of judicial opinions are hopelessly bound to that standard and its historical context. Those who author appellate opinions know they are in the midst of a struggle and that the opinion they issue will resolve the immediate issue before the court. What they don’t know is how their resolution of the immediate issue will eventually settle into the sensus communis – what elements from the opinion and the context in which it arose will be sedimented into the sensus communis and what will be cast along the wayside. They cannot anticipate how future conflicts will necessitate linguistic inventions that change the very standard of judgment.

Vico reminds us that while the Supreme Court picks its cases, it doesn’t pick our struggles (what Vico calls our “necessities and advantages”). Law is forged through inevitable confrontation of the novel, the unaccounted for, not the places where we simply apply the apparent and uncomplicated sensus communis but those where we struggle to do so. This insight is particularly helpful in appraising judicial precedent from the present. It reminds us that our common law system isn’t just about consistency and predictability; it is about a history of which we are inevitably a part. It requires that we confront and contemplate the sensus communis of those who preceded us to make sense of what is now before us and that we be humbled by the knowledge that we inevitably inhabit our current moment. Judges and Justices engage the sensus communis in the process of issuing opinions and deciding cases (with varying degrees of attention to those histories and struggles). And we do this every time we evaluate or analyze an opinion. Vico reminds us that in that evaluation we must be mindful of our own position and historical location. Vico (Reference Vico2020, p. 127) writes in The New Science of the “vanity of the learned, who want what they know to be as ancient as the world.” Schaeffer (Reference Schaeffer2001, p. 15) summarizes that Vico is here implying that “the understanding which moderns bring to a text cannot be retrojected into its past.” Vico’s sensus communis, then, helps us to reject an uncomplicated originalism that seeks to project from the present a certainty about the struggles of the past. It reminds us that appellate opinions arise amidst conflict; they sediment into certainty but do not begin there and cannot predict what uncertainties and necessities will arise in the future. Generally, then, Vico’s sensus communis can help us to appraise court opinions more fairly – not only to situate them within their time but also to consider them as wrestling in and over the sensus communis. Rather than assuming that they should be above the common sense of the time or that they should have anticipated our conflicts and their attendant language, we can understand appellate opinions as confronting the needs and necessities of their time and, in so doing, revising communal values without full appreciation of the extent to which they would do so. In particular, Vico’s sensus communis can help us to remember that it is not only values and conflicts that shift, but the very language that encapsulates and animates them.

8.4 Situating Schuette’s Predecessors

I turn now to Schuette v. BAMN (2014) and its predecessors to demonstrate how we might employ Vico’s insights about sensus communis when analyzing and evaluating judicial precedent. I begin by describing the facts of the Schuette case. I then describe the precedent upon which the plurality relies to decide Schuette, discussing those decisions in their historical context and in relation to each other. I then analyze how the Schuette plurality reads this precedent as well as how commentators have criticized the earlier decisions for their failure to provide clear guidance to the Schuette Court. I argue that previous opinions could not have anticipated the degree to which the future Court would reject the notion that individuals could be discriminated against as members of a group; I also argue that previous opinions could not have anticipated a time when, to find discrimination by the majority, you’d have to locate intent with respect to each voter. Critics of this precedent miss the extent to which this assumption – that it was commonplace that the majority would work to preserve its superiority at the expense of minorities and that this work needn’t necessarily be motivated by overt and conscious bias to be understood as discriminatory – was embedded in the sensus communis, the very standards of language, of those earlier opinions.

In 2006, Michigan voters adopted, with 58 percent of the vote, a constitutional amendment (Proposal 2) that barred Michigan’s public universities from using race-conscious admissions policies. While other states had already enacted voter-supported bans on affirmative action, the Michigan ban was legally distinct in that, per the Michigan state constitution, the universities’ boards of trustees are invested with authority over the universities, including admissions policies. Thus, the voters had singled out race-conscious admissions, and only race-conscious admissions, as outside the scope of the boards’ constitutionally mandated discretion. The plaintiffs challenged Proposal 2 on Equal Protection grounds, arguing that, by removing race-conscious admissions decisions and no others from the boards’ purview, the state was discriminating on the basis of race. While the Sixth Circuit Court of Appeals determined that Proposal 2 did violate the Fourteenth Amendment’s Equal Protection Clause, in Schuette v. BAMN (2014) the United States Supreme Court upheld Proposal 2, with six Justices concurring in the judgment and two dissenting. The plurality opinion, authored by Justice Kennedy, was joined by Justices Roberts and Alito. In total, there were five separate opinions authored in the case. The fractured opinions suggest the difficulty the Justices had in reasoning the outcome of the case. We might, then, suspect that this difficulty was caused by either the relative novelty of the question presented by Schuette or the lack of clarity provided by the precedent. My analysis, however, demonstrates something different – that the Court’s difficulty in deciding Schuette is, in part, attributable to the dramatic shift in sensus communis around majority-inflicted racial injury that occurred between when the last relevant precedent was authored and when Schuette was decided.

Indeed, Schuette was not the first time the Court had been asked to review voters’ concerted efforts to roll back a state’s attempts to address racial discrimination and inequity. Against the immediate and then fading backdrop of the civil rights movement, the Court had been asked to consider such efforts from the late 1960s on. Three decisions consume the bulk of the Schuette plurality’s opinion: Reitman v. Mulkey (Mulkey) (1967), Hunter v. Erickson (Hunter) (1969), and Washington v. Seattle School District No. 1 (Seattle) (1982). Like Schuette, each case confronts what were, at the time, controversial state actions designed to combat racial oppression and subordination. Mulkey and Hunter consider fair housing and Seattle integrative busing. By the time of Schuette, however, the controversy around those actions had receded – the wisdom of fair housing and the impracticality of integrative busing had settled into the sensus communis. This enabled the Schuette plurality, situated within its contemporaneous sensus communis, to understand its case, concerning affirmative action, as something entirely different from the precedent.

Schuette and these earlier cases are unique in the Court’s Equal Protection jurisprudence in that they concern actions that would not have raised any potential Equal Protections violations had they concerned mere state inaction rather than voter-led efforts to single out state-led policies aimed at stemming the effects of discrimination for differential treatment. In the case of Schuette, for example, the claim was not that Equal Protection required the state to implement affirmative action in their university admission policies; rather, the Equal Protection claim was based on the notion that voters could not single out race-sensitive admissions policies for differential treatment while otherwise leaving the board’s discretion, which was mandated by state constitution, untouched. The allegation of racial discrimination lay in the differential treatment of race-based policies, not in the state’s drawing of racial distinctions itself. The decision in Students for Fair Admissions v. Harvard (2023), in which the Court held that university affirmative action policies are unconstitutional, is a more typical example of an Equal Protection claim. There, the plaintiffs claimed that affirmative action policies violated Equal Protection because they drew impermissible distinctions on the basis of race.

The Equal Protection clause of the Fourteenth Amendment, ratified in the wake of the Civil War, declares that no state may “deny to any person within its jurisdiction the equal protection of the laws” (US Constitution Amendment XIV, § 2). While the Court refused to understand the clause as banning racial segregation in Plessy v. Ferguson (1896) (upholding the notion of “separate but equal”), it overturned that decision in Brown v. Board of Education of Topeka (1954). It has since then applied what has come to be known as “strict scrutiny” to any state action that draws distinctions on the basis of race. That standard requires that a state narrowly tailor race-based distinctions to further a compelling governmental interest. In essence, this has meant that a state is not permitted to draw distinctions on the basis of race unless it has an exceedingly convincing, nondiscriminatory reason for doing so and unless it can show that any race-neutral measure would not suffice to accomplish the same ends. As the Court’s Equal Protection jurisprudence regarding race-based distinctions has developed, it has held that the Equal Protection Clause prohibits state actions that are demonstrably racially motivated or engineered (Washington v. Davis, 1976). In other words, the Court has understood the Equal Protection clause to prohibit states from drawing unjustifiable race-based distinctions, not to proactively require the end of racial inequity.

In a sense, Schuette and its predecessors concern whether the voters of a state may work to rescind a state’s proactive steps to address racial inequity (steps that are neither constitutionally mandated nor constitutionally prohibited). These cases demonstrate the tension between the state’s duty to right racial wrongs and the majority’s prerogative to maintain the racial status quo. Through understanding Schuette and its predecessors – Mulkey, Hunter, and Seattle – not as mere reflections of common opinion but manifestations of the struggle over sensus communis, we are able to appraise all four more fairly. I now turn to each of those opinions.

In the 1960s, in Mulkey and Hunter, the Court twice, and in quick succession, reviewed voter actions designed to roll back fair housing legislation, finding them in violation of the Equal Protection Clause both times. The debate over the impacts of neighborhood segregation and the wisdom of prohibiting discrimination in housing was ripe at the time. In July 1967, President Lyndon Johnson commissioned the National Advisory Commission on Civil Disorders (more commonly known as the Kerner Commission) to investigate the causes of urban riots in Black and Latino neighborhoods across the country. The commission’s report famously declared: “Our nation is moving toward two societies, one black, one white – separate and unequal” (The National Advisory Commission on Civil Disorders, 2016, p. 1). It found that white racism, which led to segregated neighborhoods and lack of economic opportunity in those neighborhoods, was a primary cause of the riots. The report argued that ending neighborhood segregation was the only way to address the underlying inequities that inspired unrest and violence. About a month after the report was released, Dr. Martin Luther King Jr. was assassinated; days later, the Fair Housing Act, barring discrimination in the provision of housing, was signed into federal law.

The Supreme Court’s decisions in Mulkey and Hunter came in the midst of these riots and the simmering debate over pursuing fair housing. The sensus communis over the wisdom of fair housing legislation had not yet settled, but the existence of segregated housing patterns (and the desire of many to maintain that system) was well known. Mulkey, decided in May 1967 by a margin of 5–4, concerned California’s voters’ enactment of a constitutional amendment that made it illegal for the state to abridge the right of property owners to exercise “absolute discretion” in the lease and sale of real estate. The Court found the amendment violated the Equal Protection Clause. Prior to the passage of the amendment, the California legislature had enacted one law that forbade restrictive covenants and another that prohibited racial discrimination in the sale or rental of residential real estate with more than four units. The amendment, then, was a reaction to the legislature’s efforts to pursue fairer housing. Like Schuette, then, Mulkey concerned not the constitutionality of legislative inaction, but the constitutionality of voters’ efforts to roll back legislative action. Because there was, as of yet, no federal law requiring fair housing, California wasn’t compelled to ensure it. Had the California legislature failed to pass fair housing laws, California citizens would have been free to continue to discriminate in the sale and lease of housing. The question, then, was not whether federal law prohibited Californians from discriminating in the provision of housing; it was whether the State of California itself had violated the Equal Protection Clause, had itself engaged in invidious discrimination, by passing a constitutional amendment that proclaimed and protected the right to discriminate in the provision of housing. In reaching its decision, the Court stressed the necessity of “asses[ing] the potential impact of official action in determining whether a State has significantly involved itself with invidious discrimination” (Reitman v. Mulkey, 1967, pp. 379–380). In so doing, it relied on a line of case law in which the Court had struck down subtle state actions that were designed to distance the state from “official” discrimination while, nonetheless, promoting it. The Mulkey majority opinion breezes through five previous opinions without spending much time parsing the discriminatory action at work. Among the unconstitutional actions it cites are when New Orleans city officials made public statements about not permitting Black patrons to seek desegregated service in restaurants though they never passed an official ordinance to that effect and when a state statute gave a state political party’s executive committee power to “prescribe the qualifications of its members for voting” in primaries, effectively restricting primary voting to white party members (Reitman v. Mulkey, 1967, pp. 379–380). Through these citations, the Court seemed to be intimating that either a narrow view of state action or the abstracted application of a “neutrality principle” might miss pernicious discriminatory state action. At the same time, it was conveying the many creative ways states had worked to promote discrimination while attempting to skirt constitutional scrutiny. In spending relatively little time discussing each opinion, the Court also seemed to be suggesting how commonplace and predictable this behavior was. The Court situated California’s voters’ actions squarely in this history, finding that the amendment “was intended to authorize, and does authorize, racial discrimination in the housing market. The right to discriminate is now one of the basic policies of the State” (Reitman v. Mulkey, 1967, p. 381). The majority opinion in Mulkey, then, reflects the common sense of the time (supported by social and judicial history) that state promotion of racial discrimination emerges in diverse and insidious forms and that such actions are regrettably common.

Justice Harlan’s dissent provides further insight into the debates of the time and the contests over the sensus communis. Harlan rejected the majority’s analysis, finding that the amendment was neutral on its face and that its constitutionality was to be determined “by what the law does, not by what those who voted for it wanted it to do” (Reitman v. Mulkey, 1967, p. 391). Harlan began and ended his dissent by stressing his concern that the majority’s decision would impede racial progress. He opened by fretting that the decision would “actually serve to handicap progress in the extremely difficult field of racial concerns” in the long run (p. 387). And he closed by predicting that “the doctrine underlying this decision may hamper, if not preclude, attempts to deal with the delicate and troublesome problems of race relations through the legislative process” (p. 395). Harlan’s dissent is reminiscent of the refrain “go slow” and reflects an ongoing and contentious debate at the time, as memorialized in King’s “Letter from Birmingham Jail” (1963) and Nina Simone’s “Mississippi Goddamn” (1964), among many others. It shows how there seemed to be a settling, though not yet settled, consensus that fair housing was an issue of racial equity (“go slow” suggests a recognition of a problem and a refusal to pursue it promptly) and how contentious the pursuit of that goal was. The rhetorical conflict surrounding Mulkey and the as yet unsettled sensus communis around the wisdom of guaranteeing fair housing would later be elided by the Schuette plurality, flattened into the ahistorical, uncontested notion that ensuring fair housing is common sense.

The Court’s 8–1 decision in Hunter v. Erickson, decided in January 1969, concerned a similar effort to roll back fair housing protections. Though it was decided only two years after Mulkey, there had been significant national developments in the discussion around fair housing in the interim. Hunter came on the heels of the release of the Kerner Report and the passage of the Fair Housing Act. The case concerned voters’ efforts to thwart a city council’s fair housing ordinance and any future efforts to pass a similar ordinance. In 1964, the city of Akron, Ohio, passed a fair housing ordinance. Voters subsequently passed an amendment to the Akron city charter which vitiated the fair housing ordinance and required that any ordinance that regulated the sale or lease of real estate on the basis of “race, color, religion, national origin or ancestry” be approved by the voters in a regular or general election (not a special one). While the city argued that the case was distinct from Mulkey because the voters’ amendment didn’t declare a right to discriminate, the Court found that because the amendment “treat[ed] racial housing matters differently from other racial and housing matters” (by requiring that these matters be subjected to a special procedure outside the normal referendum process), it created a suspect racial classification (Hunter v. Erickson, 1969, p. 389). The Court was unimpressed with the city’s argument that the amendment reflected a “public decision to move slowly in the delicate area of race relations” (p. 392), noting that the voters adopted a more “complex system” than a broadly applicable system for considering ordinances and insisting that “the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size” (p. 393). The opinion presumes, without elaboration, that fair housing legislation benefits minorities, which is why the Court was able to find that the city’s efforts to treat racial housing matters differently than all others was necessarily a “meaningful and unjustified distinctio[n] based on race” (p. 391). This was a reasonable presumption, though it was not without detractors, as white Southern politicians had spent decades claiming that segregation was to the benefit of both white and Black Americans (Epps-Robertson, Reference Epps-Robertson2016). Though it’s now relatively uncontroversial to suggest that racial discrimination in the provision of housing is to the detriment of people of color – despite evidence of the continuing prevalence of the practice (United States Department of Justice, 2021) – Mulkey and Hunter themselves remind us that the sensus communis around the issue was still unsettled at the time of those decisions.

In a concurrence, Justice Harlan noted that the “city’s principal argument in support of the charter amendment relies on the undisputed fact that fair housing legislation may often be expected to raise the passions of the community to their highest pitch” (Reitman v. Mulkey, 1967, p. 395). Rather than a justification for the amendment’s differential treatment of fair housing matters, Harlan saw the obviousness of the controversy as proof of the amendment’s discriminatory purpose, reasoning that “the charter amendment [would] have its real impact only when fair housing [did] not arouse extraordinary controversy” because it would tip the scales against fair housing even when majority support had shifted in favor of it (pp. 395–396). Harlan, then, takes the sensus communis that communities must “go slow” in pursuing fair housing to show how voters had leveraged that common opinion to preclude future progress, even when (and if) public opinion (the sensus communis) had shifted.

The next time the Court heard a case concerning voters’ efforts to frustrate a state’s attempts to address racial discrimination was in 1982 in Washington v. Seattle School District No. 1. The case concerned a statewide initiative to ban mandatory busing for the purposes of integration and was targeted, specifically, at the Seattle school district’s voluntary efforts to desegregate its schools. The Court held the state’s action in violation of the Equal Protection Clause by a 5–4 margin. Busing for the purposes of desegregation had been controversial since courts had first imposed it as a remedy to school districts’ Equal Protection violations. Like the controversy around fair housing, that controversy has largely receded into the background. Unlike fair housing, the reason it has done so is because the practice has largely been abandoned (in part because of the Supreme Court’s 2007 opinion in Parents Involved in Community Schools v. Seattle School District No. 1 (Parents Involved), which I discuss later) and is regarded by many as a relic of history. This sentiment is well reflected by an exchange between Kamala Harris and Joe Biden during a 2019 Democratic presidential primary debate. In that debate, Harris attacked Biden for his history of opposing desegregative busing in the 1970s and 1980s, noting that she had been a beneficiary of the practice (Paz, Reference Paz2019). However, when pressed after the debate about her current position on busing, she demurred, locating the practice and the controversy over it in the past: “I have asked [Biden] and have yet to hear him agree that busing that was court-ordered and mandated in most places and in that era in which I was bused, was necessary” (Martin & Glueck, Reference Martin and Glueck2019). In positioning their quibble over the past practice of busing, Harris locates the practice and its necessity in the past. Though the controversy over busing has receded, at the time of Seattle it was ripe; busing, both court-ordered and district-adopted, was still a primary way of addressing the racial segregation that plagued – and still plagues (United States Government Accountability Office, 2022) – many schools across the country.

In 1978 the Seattle school district implemented a desegregation plan that included busing and reassignments which resulted in “the reassignment of roughly equal numbers of white and minority students, and allow[ed] most students to spend roughly half their academic careers attending a school near their homes” (Washington v. Seattle, 1982, p. 461). As the program was being developed, disgruntled Seattle residents formed the Citizens for Voluntary Integration Committee (CiVIC) which sought, first, to enjoin enforcement of the desegregation plan and, after that failed, to pass a statewide initiative banning mandatory busing for the purposes of integration. The initiative passed with 66 percent of the vote. While the general facts appear similar to Hunter (voters overturning and creating a more arduous process for reinstituting a measure designed to pursue racial equality), the Court obviously struggled with how divided public opinion about integrative busing was. A 1981 Gallup poll found 17 percent of white respondents in favor of desegregative busing (with 78 percent opposed) and 60 percent of Black respondents in favor (with 30 percent opposed) (Steadman, Reference Steadman1981). The Court was presented with a clear rupture in the sensus communis. If it was to find an Equal Protection violation, it would have to find that the voters’ action discriminated on the basis of race even though it could not say that minorities were universally invested in integrative busing or that everybody who opposed integrative busing did so for racially motivated reasons. Accordingly, the Court noted that while “proponents of mandatory integration cannot be classified by race,” its own cases “suggest that desegregation of the public schools, like the Akron open housing ordinance, at bottom inures primarily to the benefit of the minority, and is designed for that purpose” (Washington v. Seattle, 1982, p. 472). Its reasoning, then, rested not on assigning preference for integrative busing to minorities but on the Court’s own, at that point, relatively uncontroversial conclusions (dating back to Brown v. Board of Education) that desegregated schools benefit minority students, and that segregation harms them. Essentially, the Court focused on the racial injury of segregation rather than the particular remedy (integrative busing) to reach the conclusion that the voters’ initiative “burden[ed] minority interests” (Washington v. Seattle, 1982, p. 474). Rooting its opinion in the established sensus communis over the harms of racial segregation in education, the Court was able to assign race-based intent and effect to the voters’ action.

As had the Hunter Court, the Seattle Court focused on the complicated process voters had devised to insulate integrative busing from school boards’ control. It stressed that by removing the option of integrative busing from school boards’ discretion, the voters had “expressly require[d] those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action,” as they would have to appeal to the voters or legislature of the entire state rather than the school board about this, and only this, school assignment matter (Washington v. Seattle, 1982, p. 474). It noted that the voters’ initiative to ban integrative busing singled out “racially-conscious legislation” for “peculiar and disadvantageous treatment” (p. 485) and stressed that “when the State’s allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the ‘special condition’ of prejudice, the governmental action seriously curtails the operation of those political processes ordinarily relied upon to protect minorities” (p. 486). Again, the Court’s analysis rests on the harm – prejudice that led to highly segregated schools – and not so much the remedy – integrative busing – to reach the conclusion that, in singling out integrative busing for differential treatment, the voters’ action discriminated against minorities. For the Court to have concluded otherwise and imply that minorities were universally in support of integrative busing would have been to willfully ignore what it knew about the sensus communis and the controversy aroused by integrative busing; it also would have imposed a favorable opinion of integrative busing on an entire class of people. As it had in Mulkey and Hunter, the Seattle Court understood the measure voters sought to eviscerate as addressing the effects of racial prejudice. Its analysis assumed the continued and significant impacts of that prejudice (something the Schuette plurality would reject). Though integrative busing was, as described in Seattle, widely controversial at the time of the decision, that controversy wasn’t a reason for the court to uphold the voters’ action. The opinion looked to the Court like Mulkey and Hunter before it because it was yet another example of voters seeking to preserve the racial status quo and to prevent the state from addressing race-based injury. School segregation was a well-established injury. What to do about that injury was less well established and less sedimented in the sensus communis. The Seattle court was attempting to navigate these realities.

Mulkey, Hunter, and Seattle can be characterized as cases in which the Court confronted voter-enacted impediments to addressing racial injury; they each involve a state action that would otherwise be constitutionally permissible but was not because the majority of voters singled out that racial issue for special treatment. The facts of Schuette would seem to fit this pattern well, but the Court’s inability to understand affirmative action as anything other than the infliction of harmful racial categories would be the difference in the outcome. As I explain below, this inability is attributable both to the plurality’s flattening of the struggles over sensus communis memorialized in the precedent it cites as well as its inability to understand the Schuette case itself as being about the sensus communis over Equal Protection.

8.5 Making Sense of Schuette v. BAMN

As I’ve indicated, Mulkey, Hunter, and Seattle are the primary precedents with which the Schuette plurality opinion wrestles. In comparison to the amount of time it spends discussing Seattle, the Schuette opinion (Schuette v. BAMN, 2014) devotes relatively little text to distinguishing Mulkey and Hunter. In its brief review of these two opinions, the Schuette plurality casts them as uncomplicated cases where the voters had sanctioned the racist practices of individuals. This characterization flattens the historical struggle over fair housing and abstracts the opinions from the sensus communis in which they were formed. The Schuette plurality mentions the plaintiffs’ particular circumstances in both cases (specific acts of racial discrimination in the provision of housing) and finds that in Mulkey and Hunter “there was a demonstrated injury on the basis of race that, by reasons of state encouragement or participation, became more aggravated” (Schuette v. BAMN, 2014, p. 304). Interestingly, this construction locates the primary harm and action with individuals (those who would discriminate in the provision of housing) and assigns the state the role of “aggravating” the underlying problem. This is a markedly different characterization than that of earlier courts who declared in Mulkey that the voters’ action had rendered the “right to discriminate” “one of the basic policies of the State” (Reitman v. Mulkey, 1967, p. 381) and in Hunter that the voters’ action “constitute[d] a real, substantial, and invidious denial of the equal protection of the laws” (Hunter v. Erickson, 1969, p. 392). By eschewing the opinions’ own characterizations of the evils at work and locating the action with those who would discriminate in the provision of housing, the Schuette plurality abstracts those opinions from the sensus communis in which they were formed, minimizing the common opinion of those times that the majority was regularly and perniciously involved in preserving white supremacy. In the Schuette plurality’s characterization, racism is wrought by individuals, not the majority or the state. This depiction also buttresses the Schuette plurality’s tortured description of Seattle and serves to distinguish all three cases from how the plurality understands the Michigan voters’ actions, which it sees as neutral democratic policymaking in action.

The Schuette plurality opinion describes Seattle as a case in which the “state action in question (the bar on busing enacted by the State’s voters) had the serious risk, if not purpose, of causing specific injuries on account of race” (Schuette v. BAMN, 2014, p. 305). That determination poses some difficulty for the plurality because the Court ruled in Parents Involved in Community Schools v. Seattle School District No. 1 (2007) that the Seattle district’s integrative plan was unconstitutional because, in its determination, the district had not been subject to de jure segregation and, absent that determination, its plan failed to advance a compelling state interest in a way that was narrowly tailored. Parents Involved, then, rejected the Seattle Court’s underlying premise that integrative busing was to the benefit of minority students by declaring that to classify students by race for the purpose of school assignment was, absent a finding of de jure segregation, presumptively to inflict injury on the basis of race. In other words, where the Seattle Court had found that integrative busing was to the benefit of minority students, the Parents Involved Court found that it harms all students (including minority students). The Schuette plurality opinion attempts to confront this complication by declaring that “we must understand Seattle as Seattle understood itself,” as a case in which neither party “challenged the propriety of race-conscious student assignments for the purposes of achieving integration” (Schuette v. BAMN, 2014, p. 306). From there, the plurality concludes that, in Seattle, “the State’s disapproval of the school board’s busing remedy was an aggravation of the very racial injury in which the State itself was complicit” (p. 306). The Schuette plurality, then, seems to accept that, in the Seattle past, schools that were segregated through state action harmed minority students and that Seattle had such schools. In this way, the Schuette plurality assigns discriminatory action to specific actors – in Mulkey and Hunter, those who would discriminate in the provision of housing and in Seattle, the Seattle school district itself – and assigns to voters the role of “aggravating” racial injury. This move works to emphasize the role of individual bad actors in inflicting discrimination and to distance the states’ and voters’ roles in that work, abstracting those earlier opinions from the sensus communis of the time that the majority will often work to preserve white dominance and that the courts should be attuned to this danger. It also draws a distinction between historic, specific racial injuries that must be remedied (housing discrimination and state-sponsored school segregation) and racial disparities whose root causes are less easily assigned. This distinction aids the plurality in its aim of articulating a sensus communis that both majority-imposed and state-sponsored racial injuries are things of the past.

The Schuette plurality’s selective historical contextualizing of Seattle elides how controversial integrative busing was both at the time of that decision (1982) and when Parents Involved was decided (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). In so doing, the plurality opinion renders the racial injury in Seattle clear and uncomplicated (like its assessment of Mulkey and Hunter) and a relic of the past. The plurality, then, imposes the current sensus communis over the obvious harms of housing discrimination and state-imposed school segregation on those previous cases, eliding the controversies engendered by the specific remedies the states in those cases sought to undertake. This elision renders the voters’ “aggravating” actions in each case patently discriminatory. It also sets the plurality’s opinion and the Schuette controversy in a new era – one where housing discrimination and school segregation are past problems duly acknowledged and addressed by law. In turn, this move articulates the present as one where race-based injuries have largely been alleviated and where classification on the basis of race itself is the primary evil the legal system must guard against.

This past/present divide aids the plurality in distinguishing the Michigan voters’ efforts to remove affirmative action from the purview of university boards with the Washington voters’ efforts to remove integrative busing from the purview of school boards. The opinion suggests that to find for the plaintiffs would require accepting the proposition that “all individuals of the same race think alike” (Schuette v. BAMN, 2014, p. 308) and would encourage “the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage” (p. 309). The implication is that affirmative action, unlike fair housing or the integrative busing of yore, is an issue with neutral racial implications about which reasonable people disagree. What this implication denies is the possibility of any underlying race-based injury. While discriminatory housing practices and racially segregated schools are cast as clear race-based injuries that can be aggravated by voter action, the history of discrimination in higher education and the persistence of racial inequities in higher education admissions and attainment are, for the Schuette plurality, beside the point.

In rendering Seattle’s integrative busing plan less a controversial measure to achieve racial balance in schools and more a necessary antidote to insidious, state-sponsored segregation, the Schuette plurality could represent controversy over affirmative action as something of a different kind, something untethered to racial injury and prejudice. If affirmative action is nothing more than a policy preference (about which many reasonable people disagree and to which we cannot assign race-based purpose, benefit, or preference), the voters’ action is merely democratic decision-making in action.

Though the Schuette plurality declares at the outset that the case “is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education” (Schuette v. BAMN, 2014, p. 300), its decision, and particularly its treatment of Seattle, suggests the opposite – that the outcome of the case was contingent on the Court’s negative assessment of affirmative action itself. The plurality closes by declaring: “What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial categories and, second, the grant of favored status to persons in some racial categories and not others” (p. 300). This description draws into question the plurality’s insistence that its assessment of affirmative action is not contingent on the outcome of the case. While the Seattle Court understood that integrative busing was controversial, that didn’t keep it from acknowledging the underlying purpose of integrative busing, the injury it was designed to address, and the complex process voters had used to remove busing from school boards’ purview. The difference between Seattle and Schuette, then, might be attributed not to the controversy around the respective policies but to the Justices’ own opinions about those policies (as informed by those public controversies). In other words, the difference may be that the plurality of the Justices on the Schuette Court were interested in tipping the sensus communis toward a colorblind field of vision while the majority of the Justices on the Seattle Court still inhabited a sensus communis where it was common sense that the white majority might work to preserve its privilege, even absent overt racial animus.

At the time of Washington v. Seattle School District No. 1 (1982), court-ordered busing was still relatively common and the Supreme Court continuously upheld the practice even in the face of public outcry. While public opinion was divided, the Court itself may have understood busing as a valuable tool in combatting segregation (especially when other methods like neighborhood integration were abandoned by the federal government). On the other hand, at the time of Schuette v. BAMN (2014), the Court had already begun to erode the constitutional basis for affirmative action, which may explain why the Schuette plurality could only envision the practice of affirmative action itself as inflicting racial injury (rather than the other way around). That the plurality understood the drawing of racial classifications as racial injury may also explain the plurality’s tortured reading of Seattle. By explaining the Seattle Court’s decision only in terms of de jure segregation and the Court’s historic intervention in that presumed bygone practice, the Schuette plurality could draw a stark line between the era when race-based remedies were necessary and the present, where they are suspect and harmful. In this way, the plurality tries to fit history into its own sensus communis around Equal Protection – an understanding that we are past the era where racial classifications can combat prejudice because underlying state-backed prejudice has been confronted and vanquished.

The Court’s assessment of affirmative action is perhaps more widely accepted than it sometimes appears. While Steve Sanders claims that “anybody who can read a poll knows that affirmative action is supported by an overwhelming number of blacks” (Sanders, Reference Sanders2016, p. 1448), in truth it is somewhat difficult to determine where the plurality’s description lies within the (as yet) unsettled sensus communis. In 2014, the year Schuette was decided, Pew researchers asked respondents this question: “In general, do you think affirmative action programs designed to increase the number of black and minority students on college campuses are a good thing or a bad thing?” In the poll, 84 percent of Black respondents declared them a good thing, while 80 percent of Hispanic respondents and 55 percent of white respondents did (Drake, Reference Drake2014). That polling would suggest that affirmative action was even more popular among Black Americans at the time of Schuette than desegregative busing was at the time of Seattle, where a poll found 60 percent of Black respondents in favor of desegregative busing (Steadman, Reference Steadman1981). But the wording of polling questions concerning approval for affirmative action has significant impact on outcomes. A 2021 Gallup poll asked respondents: “Do you generally favor or oppose affirmative action programs for racial minorities?” In that poll, 79 percent of Hispanic adults responded in favor, 69 percent of Black adults responded in favor, and 57 percent of white adults responded in favor (these are not tremendously different results than the 2014 poll) (Saad, Reference Saad2021). However, in a 2022 Pew poll, when asked if race or ethnicity should be a factor in college admissions decisions, 39 percent of Black adults responded yes, while 37 percent of Asian adults, 31 percent of Hispanic adults, and 21 percent of white adults did (Gómez, Reference Gómez2022). These results suggest that when polling questions move from the level of abstraction to more specifically referencing the mechanics of affirmative action, support plummets. So, while polling data contemporaneous to Schuette suggests broad minority support for affirmative action, the wording of that polling question should give us pause. Perhaps, then, the Schuette plurality was right – Michigan voters’ removal of affirmative action from university boards’ otherwise complete discretion over admissions policies is not a violation of Equal Protection but a mere manifestation of democracy in action. And yet, the Court’s precedent suggests that the analysis shouldn’t rest on the popularity of a given practice but upon the racial injury effected when, through voter action, a practice designed to address racial injury is rendered more difficult to enact than any similar non-race-based practice.

Certainly, as I’ve suggested, we can (and should) attribute the outcome in the Schuette case both to the shifting composition of the Court and to the rise of what some critics have termed the Court’s colorblind approach to the Equal Protection claims, where it tends to view any racial classification, whether designed to address historical and present inequities or to exacerbate inequities, as suspect (Roberts, Reference Roberts2014). However, some have criticized the precedent upon which the Schuette plurality relied for its failure to provide clear guidance as to the application of Equal Protection. Sanders argues that a “significant weakness” of the cases preceding Schuette “is the court’s relative delicacy and indirection about the racial dynamics behind the challenged measures in those cases” (Sanders, Reference Sanders2016, p. 1438). He goes on: “The Hunter and Seattle opinions can be criticized for the Court’s unwillingness to be more forthcoming and candid about the racial prejudice it perceived behind the restructurings” (p. 1438). Similarly, David Bernstein argues the court could have named the “substantial racist component” behind the voters’ actions in Mulkey and Hunter but did not (Bernstein, Reference Bernstein2013, p. 264).

Like the Schuette plurality opinion itself, these criticisms seem to abstract Mulkey, Hunter, and Seattle from their historical contexts. Suggesting that those earlier Courts should have predicted the colorblind approach that would come to dominate the Court’s evaluation of Equal Protection claims, Sanders and Bernstein seem to want those earlier Courts to have anticipated the turns in both language and values that would develop around Equal Protection law. Bernstein charges that

It’s not clear that either decision Bernstein references fails to establish discriminatory intent and effects. In Mulkey, when the Court says that the amendment “was intended to authorize, and does authorize, racial discrimination in the housing market” and that this renders “the right to discriminate” one of the “basic policies of the State,” the Court is clearly indicating the intended and actual effect of the amendment (Reitman v. Mulkey, 1967, p. 381). Bernstein’s criticism seems more leveled at the Court’s failure to assign the term “racist” to the amendment and the voters than its analysis of a clear violation of Equal Protection. Bernstein may have perceived that the Court handled the matter “delicately” less because the Court failed to outline the nature of the violation and more because the amendment looks egregious to us now (and didn’t to many at the time of its passage). Similarly, the Hunter Court is clear that the Akron voters had singled out fair housing in an effort to place “special burdens on racial minorities within the governmental process” (Hunter v. Erickson, 1969, p. 391), explicitly holding that the amendment “discriminate[d] against minorities” (p. 393). Bernstein is correct that the Court failed to label the Akron voters themselves racist, electing to label the amendment itself discriminatory. But whether that’s a “weakness” the Court should have avoided, as Sanders claims and Bernstein suggests, is less clear.

Bernstein and Sanders are right that in all three opinions – Mulkey, Hunter, and Seattle – the Court avoids labeling the voters’ actions racist or even racially motivated. The Court’s reticence to assign the label racist to each individual voter, especially in the case of Seattle, makes sense given that such a sweeping generalization would have been unsupported by evidence (though, undoubtedly, a significant portion of those opposed to busing were opposed to desegregation). After all, in Seattle, polling reflected that 30 percent of Black adults opposed desegregative busing, an opinion the Court may have known was shared by prominent civil rights activists including preeminent civil rights lawyer and scholar Derrick Bell (Cobb, Reference Cobb2021). Further, it’s notable that at the time of Mulkey and Hunter, Southern politicians had been articulating the position that one could be a segregationist without being a racist. George Wallace proclaimed in 1964: “A racist is one who despises someone because of his color, and an Alabama segregationist is one who conscientiously believes that it is in the best interest of Negro and white to have a separate education and social order” (Bernard, Reference Bernard2022). While almost nobody would entertain the proposition now, at the time of Mulkey, the Warren Court had spent more than a decade combatting that very idea – that segregation and separation on the basis of race could be distinguished from the maintenance of white supremacy and the perpetuation of inequality – by chronicling the effects of segregation. The Court understood its role in confronting and altering the sensus communis around “separate but equal.” So, while Bernstein is correct in indicating that the Court was navigating common opinion and controversy of the time, his suggestion that it could have just labeled the actions in question in Mulkey and Hunter racist seems ahistorical, as that label wouldn’t have had the same relevance as it does in current judicial and cultural reasoning (because the meaning of the term was contested in different ways than it is today) and wouldn’t have aided in resolving the underlying legal question (because the opinions already establish the creation of a suspect racial classification and discriminatory effect of that classification).

8.6 Conclusion

Reading these opinions through Vico’s sensus communis reminds us that the Mulkey, Hunter, and Seattle Courts were accustomed to the particular sorts of evils the majority could undertake in the name of democratic action and in the service of preserving the racial status quo. Schuette, its precedent, and the criticisms of those precedents draw into stark relief how the Schuette plurality had to engage the settled sensus communis over the historical importance of Equal Protection, while continuing to revise its present meaning, all as a result of confronting a new necessity – the question of whether a state’s voters can discriminate in their treatment of state universities’ authority with respect to affirmative action. To achieve this result, the Schuette plurality worked to insulate the racial injuries of the past from any relationship to the present. In suggesting that Seattle concerned de jure segregation (something Parents Involved strenuously argued against), the opinion renders Seattle part of the kind of legally backed discrimination and segregation that we have moved past and beyond. In the Schuette plurality opinion, de jure segregation is classed with overt housing discrimination, and those issues are located in the Court’s and our past. This move enables the plurality to articulate our present and future as one where it is possible for all to live as individuals untainted by stereotypes, where “the only way to stop discriminating on the basis of race is to stop discriminating on the basis of race” (Parents Involved in Community Schools v. Seattle School District No. 1, 2007, p. 748).

It’s easy enough to assess precedent for its failure to be completely responsive to our current controversies. I would imagine that it’s far more difficult to formulate precedent with an eye toward what future controversies might arise and the language in which those controversies will be unavoidably embedded. Certainly, we should continue to discuss how precedent does or doesn’t respond to our current situation, but we should do so with an appreciation for the sensus communis out of which that precedent emerged and with an appreciation for how our discussions themselves either do or don’t account for our history. Thus, our common law system and its reliance on precedent provides an opportunity to continually revisit our history and to struggle over what it was and what we value.

9.2 Selective Memory and (Assumed) Contradiction of Terms

Though related to the limited visibility of Arabic-Islamic rhetorics in general (e.g., Diab, Reference Diab, Depalma, Lynch and Ringer2023), there is much more to this invisibility. Negative perceptions of women and women’s rights in the Arab/Muslim world hinder a nuanced assessment of legal instruments like ACWR and their precedential history. This is especially the case if we explore women’s rights only through the stereotypical and colonial prism of concerns about women who need to be saved because they can only be assumed “passive victims of religious patriarchy,” as Howe (Reference Howe and Howe2020, p. 1) puts it. Attempts to interrogate this orientalist frame typically trigger variants of the following question: “When we take a look at the history of Arabic-Islamic legal-political rhetoric, aren’t women ‘passive victims’?” These negative perceptions center a history of impediments that women face in the Middle East and North Africa region (e.g., limited or not enforced laws promoting women’s rights, backlash constraining and questioning women’s rights). Unfortunately, these impediments and perceptions are often assumed to be fait accompli and are selectively made more visible. In the mix, an undeniably rich discourse of rights, including women’s rights, remains invisible. It even seems hard to trace. This discourse comprises a legal–ethical rhetoric of rights (e.g., Diab, Reference Diab2018) and vernacular rhetorics of women’s rights with conspicuous religious roots. Selective remembering is perilous.

Furthering invisibility, such selective memory may result in an absence of guarantees to women’s rights and accountability measures for the violation of their rights. Empowering advocacy for women’s rights (discourses) hinges on knowledge of and access to the legislative record, cultural and historical precedents, and role models. What if such knowledge remains invisible and inaccessible? Why are the ACWR’s present and past contexts invisible or ignored? What and how can we know differently about official and/or vernacular women’s rights discourses in the Arab(ic)-Islamic traditions? Bringing attention to official and vernacular rhetorics of women’s rights and the Arab(ic)-Islamic legal-rhetorical tradition might surprise some or seem like a contradiction in terms to others; however, they often intersect and can help us answer these questions.

I demonstrate that we can know differently Arab(ic)-Islamic women’s rights discourses by undertaking a more nuanced study of multifaceted regional contexts, historical roots, formative texts, enthymemes, and topoi that underwrite this rights advocacy. Additionally, we can attend to ACWR and ACHR’s immediate present and formative past, including official and vernacular rhetorics of rights.

Scholars study vernacular rights discourses to highlight how articulations and “demands for rights … are inseparable from their particular cultures, histories and political contexts” (Dunford & Madhok, Reference Dunford and Madhok2015, p. 605). Scholars also distinguish between thin and thick discourses of rights. In his work on the “Moral Vernacular of Human Rights,” Hauser defines the thin moral vernacular of human rights discourse as a “form [of discourse] in which human rights are transformed from a discrete set of moral principles to a discourse, or human rights talk. It manifests human rights as open to interpretation and subject to continual revision. Human rights talk does not seek convergence on values but agreement on consequences for which there is accountability” (Hauser, Reference Hauser2008, p. 443), whereas the thick discourse is “the language used by victims of human rights abuses” (p. 442). I’ll draw on this definition frequently in the rest of the chapter.

In what follows, therefore, I shed light on persistent, even if rocky, regional Arab(ic)-Islamic tradition of women’s rights; a rich vernacular of women’s rights; and, more important, a long history of doctrinally driven legal-ethical teachings and rhetoric advocating against the violation of women’s rights and operationalizing accountability for such rights. More specifically, in what follows I first briefly chart the discourse of rights and women’s rights in Islām. I situate this rights discourse within a vision for a moral order, which is operationalized using an ethical-legal code. I demonstrate how this code is prescriptive, proscriptive, and constitutive (Section 9.3.1). Second, I use the condensed argument “ūṣīkum bil-nisā’ khaīran” (I advise you to observe women’s rights) to show the recognition of women as rights holders and the commensurate obligation to observe their rights (Section 9.3.2). Third, I identify misconceptions of women’s rights (Section 9.3.3). I end the chapter by shedding light briefly on illustrative moments of persistent advocacy for women’s rights which manifest a rich blend of official and vernacular rhetorics (Section 9.4). All are invisible precedents of the 2019 ACWR.

9.3 Rights Discourse and Women’s Rights in Islām

Arab(ic)-Islamic discourse on women’s rights can be neither separated from a multifaceted discourse on rights nor abstracted from a multitude of socio-cultural and political forces that undermine them. These include social and cultural biases and organizing stereotypes within/outside the Arab-Muslim world, and it is a complicated history: A discourse on women’s rights in Islām exists; a patriarchally justified/justifiable framework questioning, if not undermining, these rights exists; misconceptions of women’s rights in Islām and Arab/Muslim communities also exist. Needless to say, tracing the history of women’s rights discourse results in a story irreducible to polemical soundbites.

9.4 Illustrative Moments: The Arab Renaissance and Continuous Advocacy and Legislation

I fast forward from the seventh century to al-Nahḍah, or the Arab Renaissance or Awakening, to shed light on illustrative moments for women’s rights. I begin with an illustrative moment that precedes the ACWR by a century and has had an enduring impact. Before the issuance of the ACWR, generations of women and men like Bint al-Shāṭi’ (ʿĀʿishah ʿAbd al-Raḥmān’s pen name; Reference Bint al-Shāṭi1991) and Qāsim Amīn (Reference Amīn2010a, Reference Amīn2010b) have advocated for women’s rights. They implicitly and explicitly invoke earlier discourse on rights, including Qur’ān and ḥadīth, and the work on the ground by scholars and activists continues outside and within legislative and legal circles.

Al-Nahḍah refers to a historical period and a dynamic process. Historians describe this period as both a “cataclysmic, colonial event” marked by Napoléon Bonaparte’s (1769–1821) invasion of Egypt and Syria and a massive regional, national, and intellectual awakening (El-Ariss, Reference El-Ariss and El-Ariss2018, p. xxv). The military’s resounding defeat was momentous, for it made clear that Egypt – and indeed the whole region – had become a proxy battlefield for British and French mercantile and political rivalry. Their subsequent colonization of Arab nations made conspicuous the undeniable cultural and technological gaps between Egypt and the colonizing powers. The interplay or collision of the military, economic, political, and cultural forces mandated introspection. In response, calls for cultural transformation, sifting through and reviving the Arab past, and embracing modernizing projects ensued and reverberated across the Arab world.

One of the most conspicuous shifts was a powerful discourse on the rights of women, who were now recognized as crucial partners of both national liberation and transformation, yet not recognized as political and legal actors with rights in these roles. In this context of transformation and reflection, presses and magazines thrived and literary salons proliferated (Diab, Reference Diab, Gross, Mao and Maillouxin press). These venues offered the space for envisioning, deliberating, and advocating for varied transformations. Key among these transformations was women’s right to have rights, including marital and epistemic rights (i.e., the rights to know and interpret). To show the impact of this moment, I very briefly shed light on Bāḥithat al-Bādīyah’s work. Joining leading feminists at the time, she identified ten articles in support of women’s rights. The articles can be considered an early articulation of and precedent for numerous documents and legislative bills that eventually led, 100 years later, to the twenty-eight articles of the ACWR.

9.5 Coda

The advocacy continues. No single moment is most crucial or sufficient to disclose the deep roots and rich history of the vernacular and official women’s rights discourse in the Arab(ic)-Muslim world. From the 1960s until now, the vernacular of rights has thrived and led to legislation, which is not without setbacks and inconsistent enforceability. It is worth noting that all the articles that were presented by Bāḥithat al-Bādīyah to the Nation’s Party Club (Nādī Ḥizb al-Umah) became reality. Egyptian women do participate widely in religious activities (Article 1), have access to K-12 and higher education (Article 2), join nursing and medical schools, and more (Article 5). Women continue to advocate for anti-discrimination laws not just by law enforcement personnel but in many aspects of private and public matters. Similarly, there is hope and a process for guardianship laws to be reformed to expand women’s legal rights. It is in this context that I see the Arab Charter for Women’s Rights, which was issued in 2019, as a moment worth celebrating only in relation to and as a recognition of a much longer, multidimensional, and ever-present advocacy for women’s rights and a rich legal-ethical code for justice.

On a warm evening in late August 2008, Leroy Downs arrived home from work to an encounter like others he had experienced many times – a humiliating and dangerous encounter, which stripped him of his liberty and constitutional rights to be let alone and equally protected under the law. Standing there, in front of his own home, Downs spoke to a friend on his cellphone. Holding the mouthpiece of a headset connected to the phone by a cord, Downs watched as a black Crown Victoria drove by, stopped, reversed, and then double-parked directly in front of Downs and his home. Some people might hurry inside or prepare to call the police in this situation, but Downs, being all too familiar with this sort of thing, recognized that this was the police.

Officers Scott Giacona and James Mahoney, white men in plainclothes, aggressively approached Downs, saying it appeared he was smoking marijuana and forcing him to “get the fuck against” his own fence.Footnote ¹ Downs explained that he was holding the mouthpiece connected to his phone, he was not smoking marijuana, and he is, in fact, a drug counselor. For unknown reasons, this response did not satisfy Giacona and Mahoney, who patted down the outside of Downs’s clothes, reached into and emptied his pockets, and searched through his wallet. Downs neither consented to this search, nor was he asked for permission. Having found nothing with which to charge Downs, Giacona and Mahoney started toward their vehicle. Aware of his purported rights, Downs asked for the officers’ badge numbers, a request which was “laughed off” with one officer saying Downs was fortunate not get locked up and the other saying, “I’m just doing my fucking job.”

In this situation, only two people broke the law, and neither of them was punished. In fact, Officer Mahoney has since been promoted. Downs, the only innocent party, was, however, disciplined from the very moment Officers Giacona and Mahoney saw him standing in front of his home that evening. Indeed, Downs had been disciplined in this way, in his words, “many times” before. His neighbor witnessed part of this demeaning encounter. The New York Police Department (NYPD) gave him the run-around when he tried to file a complaint. And when the officers were finally called to account for their actions – in Floyd v. City of New York (2013; hereafter David Floyd) – they feigned no recollection, an artifice which United States District Court Judge Shira Scheindlin did not find credible.Footnote ²

The David Floyd case is a bright spot in New York’s sullied history of stop-and-frisk. In this landmark case, twelve Black and Hispanic individuals, including Leroy Downs, succeeded in a class action lawsuit against the city, alleging that the NYPD’s use of its stop-and-frisk policy violated their Fourth Amendment right to be free from unreasonable searches and seizures and their right to equal protection of the laws under the Fourteenth Amendment. Judge Scheindlin found that NYPD officials acted with deliberate indifference to unconstitutional stops, frisks, and searches, affirming that “suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites” (Floyd v. City of New York, 2013, p. 667).

Sadly, the gross violations the David Floyd plaintiffs experienced are not uncommon, in New York and across the country, and this outcome might have been much less likely prior to 2013, when the case was decided. The cultural, political, and legal histories surrounding stop-and-frisk practices reveal discourses designed to privilege police power in the name of crime control and public safety and restrict liberty, particularly for Black and Hispanic Americans. The terms <police power>Footnote ³ and <liberty> can be understood as ideographs – links between rhetoric and ideology. These terms, alongside others, transform the legal landscape of stop-and-frisk across time. They emerge as evolving legal, political, and social terms within and beyond the opinion; and, indeed, a careful analysis of David Floyd’s contemporary rhetorical culture might have predicted the outcome.

This chapter first describes a method for that analysis: an ideographic analysis of <police power> and related ideographs in stop-and-frisk jurisprudence, specifically examining David Floyd as a textual archive of the times. First, I define and describe the ideograph and its intersection with legal texts, using Michael Calvin McGee’s (Reference McGee1980) characterization of the ideograph as a link between rhetoric and ideology as my framework (Section 10.1). Following that framework, I identify some of the prevalent ideographs of stop-and-frisk, briefly tracing their use diachronically before turning to examine their synchronic use both within and outside David Floyd (Section 10.2). Finally, I highlight how Judge Scheindlin engages this vocabulary of ideographs and the law consequently changed in response to an evolving American rhetorical culture (Section 10.3). Ultimately, I argue that ideographic inquiry offers more than a useful tool for education and analysis or a method for predicting societal beliefs and behaviors. Ideographs are a force for persuasion.

10.1 Ideographs and Rhetorical Culture

When we look at stop-and-frisk jurisprudence (or any text) ideographically, we consider the power of terms imbued with meaning through historical, social, and political use to influence related beliefs and behaviors. In “The ‘Ideograph’: A Link between Rhetoric and Ideology,” Michael Calvin McGee wrote:

That is, the language of ideology – or of the systems of ideas that influence behaviors and beliefs – is recorded textually and has the ability to influence what people think and how they act presently and in the future. This language of ideology, texts imbued with influence, is stamped with what McGee (Reference McGee1980, p. 5) described as “a vocabulary of ‘ideographs.’” Consequently, the ability to view this embossed vocabulary imparts upon the spectator the ability to predict and describe ideology.

Ideographs are, in the plainest articulation, terms that conceptualize collective social commitments toward a practice or belief. They are not propositions because ideographs are “more pregnant than propositions ever could be,” and they display an elasticity of meaning (McGee, Reference McGee1980, pp. 6–7). They identify with and about an idea or ideal, but their interpretation is not fixed. We commonly recognize ideographs as slogans or key terms that defined a culture. McGee provided <property>, <religion>, <right to privacy>, <freedom of speech>, <rule of law>, and <liberty> as examples of ideographs, though there are many more (p. 7).

Within McGee’s framework, ideographs are both “the building blocks of ideology” and “one-term sums of an orientation” because they form our beliefs and position us temporally and culturally (McGee, Reference McGee1980, p. 7). Put another way, ideographs take on meaning and reflect societal beliefs in relation to both their historical use and contemporary context, particularly in the way they relate to other elastic terms within a rhetorical culture.

As “building blocks of ideology,” ideographs reflect social commitments; “they exist in real discourse, … They are not invented by observers; they come to be as part of the real lives of the people whose motives they articulate” (McGee, Reference McGee1980, p. 7). McGee intended the ideograph as “purely descriptive of an essentially social condition. Unlike more general conceptions of ‘Ultimate’ or ‘God’ terms, attention is called to the social, rather than rational or ethical, functions of a particular vocabulary” (McGee, Reference McGee1980, p. 8). In this way, ideographs define what it means to be part of a culture and how one should behave within that culture.

In this chapter, I examine a specific rhetorical culture – stop-and-frisk law – within a broader rhetorical culture – the American public – with attention to the social function of a vocabulary of ideographs in David Floyd. I’ll borrow from Condit and Lucaites to explain the concept of rhetorical culture, which described “the range of linguistic usages available to … a group of potentially disparate individuals and subgroups who share a common interest in their collective life” (Condit & Lucaites, Reference Condit and Lucaites1993, p. xii). We might describe a broad American rhetorical culture or a more discrete rhetorical culture, such as a group of civil rights advocates, a church congregation, or the legal profession. The law, like any other collective with shared interests and language uses, “exists as part of an evolving rhetorical culture” (Hasian et al., Reference Hasian, Condit and Lucaites1996, pp. 326). There we find “commonly used allusions, aphorisms, characterizations, ideographs, images, metaphors, myths, narratives, and … common argumentative forms,” vocabularies that mark discursive and ideological boundaries within which members of the collective operate (Condit & Lucaites, Reference Condit and Lucaites1993, p. xii).

Just as the law represents a discrete rhetorical culture, it often comprises a set of discrete ideographs – terms of art specific to legal practitioners. However, our social vocabulary can never be apart from our legal vocabulary because the law is a textile stitched primarily of social stories. To be sure, popular ideographs pop up within the discursive space of the law, but some change meaning after the courts continuously employ them within the constraints of that rhetorical culture. Ideographs specific to the law appear when courts and other legal practitioners use a term or phrase that turns in meaning, style, and manner over time and through repeated use. Some ideographs reach far back into the earliest foundations of the law. Others work their way in from broader or tangential rhetorical cultures. On some occasions, meanings neatly overlap; while on others, the distinctions are more palpable.

<Police power>, for example, is a term with elastic meaning – an ideograph – used both popularly and legally and reflective of a collective commitment to a practice (e.g., stop-and-frisk) and a belief or ideology (e.g., that this practice is necessary to deter criminal activity despite infringements upon personal liberty). The term’s meaning is elastic because it depends upon when and where it is used. Today, in some segments of American rhetorical culture, <police power> takes on one elastic, often pejorative, meaning. In legal discourse environments – the rhetorical culture of law – it takes on a similarly elastic, though perhaps less pejorative, meaning. These connotations are subject to the evolutions of the rhetorical culture upon which the term is inscribed. The connotations are also reflective of the ideology of that rhetorical culture.

Ideographs are also “constantly sites of struggle, as those who successfully lay claim to [them] enjoy a significant persuasive advantage” (McCann, Reference McCann2007, p. 385). Examining the legal intersections of Black lives and <police power>, Carbado explained that we “would be right to wonder whether it is at all unusual for the Supreme Court to invent constitutional doctrine,” although this, in fact, is common because “terms like ‘due process’ and ‘equal protection’ and ‘liberty’ require Courts to give them meaning” (Carbado, Reference Carbado2022, p. 113). The terms Carbado highlighted are ideographs, which have varied or elastic meanings in the law depending upon who is using them, when and how they are being used, and for what purpose. It might even be argued that these terms operate in tandem with the principle of stare decisis to give the law meaning and force, affording it the ability define and inform, but also to both act upon individuals and cause them to move or to act (Head, Reference Head2018). Ideographs have the potential to highlight social similarities or expose tensions in changing beliefs in evolving rhetorical cultures.

So, we see ideographs as the “building blocks of ideology” in rhetorical culture. People are “‘conditioned,’ … to a vocabulary of concepts that function as guides, warrants, reasons, or excuses for behavior and belief,” rather than to belief or behavior itself (McGee, Reference McGee1980, p. 6). We become inured to the ideology presented to us through ideographs. Thus, if the vocabulary available offers a reason for a belief or behavior, then we can predict how people will behave or what they will believe by examining the vocabularies they use. By viewing a rhetorical culture’s textual archive (e.g., a judicial opinion) stamped with a vocabulary of ideographs, we can make such predictions and adjust our own language use accordingly.

The description of ideographs as “one-term sums of an orientation” offers an analytical framework for this sort of investigation: ideographic analysis as a means to predict and describe behaviors or beliefs. This analysis uncovers “interpenetrating systems or ‘structures’ of public motives” revealed in “‘diachronic’ and ‘synchronic’ patterns of political consciousness, which have the capacity both to control ‘power’ and to influence (if not determine) the shape and texture of each individual’s ‘reality’” (McGee, Reference McGee1980, p. 5). In texts, the terms align with structures of social motives in order to persuade, influence, and control. The vocabularies evolve in meaning depending upon their positionality.

The patterns run diachronically reaching back into history and synchronically stretching out into rhetorical culture. McGee explained: “Chronological sequences are provided by analysis, and they properly reflect the concerns of theorists who try to describe what [the ideograph] may mean, potentially, by laying out what the term has meant” (McGee, Reference McGee1980, p. 12). But when considering ideographs “as forces” to be used rhetorically in order to persuade others to action, we must view ideographs horizontally in conflict with other ideographs where meaning arises out of synchronic confrontations (p. 12). Ideographs are “connected to all others as brain cells are linked by synapses, synchronically in one context at one specific moment” (p. 16). Where the synchronic conflict happens, there you will find the “force and currency” of an ideograph and other terms in its cluster or “vocabulary” (p. 14). The complete ideological description, according to McGee, “will consist of (1) the isolations of a society’s ideographs, (2) the exposure and analysis of the diachronic structure of every ideograph, and (3) characterization of synchronic relationships among all the ideographs in a particular context” (p. 16).

When specifically analyzing legal discourse, we identify ideographs in precedent cases, the Constitution, and statutory law. As McGee noted, “Formally, the body of nonstatutory ‘law’ is little more than a literature recording ideographic uses in the ‘common law’ and ‘case law’” (McGee, Reference McGee1980, p. 11). Notably, significant diachronic vocabularies lie in “‘popular’ history” whether we are analyzing legal discourse or not (p. 11). Popular history includes the sort of texts we might find in popular culture: songs, films, plays, and novels, for example. The diachronic analysis would also equally include political history and public discourse. “The significance of ideographs is in their concrete history as usages, not in their alleged idea-content,” so a variety of sources should be considered (McGee, Reference McGee1980, pp. 9–10). For these reasons, I chose to examine news and popular media sources, presidential speeches, and historical and critical commentary in my cursory diachronic analysis of <police power> below.

Indeed, McGee’s methodology has proven quite useful to critics invested in cultural communication, argumentation, and rhetoric broadly. Since McGee first published his article in 1980, a vast literature of ideographic analysis has been produced by scholars identifying ideographs in the media (McDaniel, Reference McDaniel2013), public address (Potter, Reference Potter2014), legislation (Cuomo, Reference Cuomo2020), legal opinions (Sinsheimer, Reference Sinsheimer2005) (as I discuss here), related legal discourse (Langford, Reference Langford2015), and public health policies (Allgayer & Kanemoto, Reference Allgayer and Kanemoto2021) – just to name a few. In keeping with McGee’s description, the ideograph necessarily crosses a variety of contexts. Moreover, the persuasive impact of visual ideographs (Jones, Reference Jones and Barnes2009) represents yet another descendant of McGee’s work. In fact, so much scholarship exists on ideographs that many simple examples that come to mind have already been subjected to rich scrutiny.

Some scholars employing McGee’s ideographic method explore single terms diachronically, tracing their historical roots and uses. Others focus on a synchronic methodology, identifying how the term is presently situated or situated within a particular text to persuasive effect at a specific moment in time. McGee (Reference McGee1980, p. 14) explained that understanding and describing both the diachronic and synchronic patterns creates a theoretically accurate account of an ideology. So, this chapter proceeds first as a demonstration of that method, discussing some (certainly not all) diachronic patterns of <police power>, before narrowing in on the surrounding rhetorical culture and language use synchronous with Floyd v. City of New York.

In the process, I identify what we call a “vocabulary of ideographs” surrounding <police power> because ideographs do not exist in isolation; they exist in relation to other ideographs. If we charted all the ideographs used to justify a position, “they would form groups or clusters of words radiating” from original uses (McGee, Reference McGee1980, p. 13). Some of the terms I highlight in the vocabulary of <police power> include <liberty>, <high crime area>, <furtive movements>, and especially as it relates to David Floyd, <justice>.

With that said, my purpose is not solely demonstrative, nor is it to provide an exhaustive mapping of <police power>. Ideographs are forces, with rhetorical potential, bound up in their synchronic clusters (or vocabularies) – they offer more than mere description and analysis. Ideographs are influential, causing us to move and to act in response to the energy and ideas that they convey. I aim to show how McGee’s historical text can intersect with a contemporary text (e.g., a legal opinion) in a way that is valuable not only for descriptions and revelations about a term’s prior use and impact, but also for persuading and predicting present and future audiences – a valuable instrument in the practice of law or for any rhetorical purpose.

10.2 The Ideographic Patterns of <Police Power>

Contemporary scholars look back on the last fifty years or so as a period when “the Supreme Court has interpreted the Fourth Amendment to allocate enormous power to the police: to surveil, to racially profile, to stop-and-frisk, and to kill” (Carbado, Reference Carbado2022, p. 11). While it is impossible to discuss a detailed history of <police power> to stop-and-frisk in every detail here, an ideographic analysis of David Floyd would be incomplete without examining the term’s meaning and evolution – as well as its relationship to other related terms or vocabularies – diachronically.

In response to British soldiers searching their homes without restraint via general warrants and writs of assistance, the American colonists sought to include the Fourth Amendment in the United States Constitution to curb <police power>. Ratified in 1791, the Amendment provides:

The Amendment connotes personal <liberty> and a <right to privacy>. But let us not forget that personal <liberty> was denied to Black Americans until 1865 with the ratification of the Thirteenth Amendment. The law is riddled with disconcerting examples of a long history of racial disparity in its application, which is unmistakably apparent in stop-and-frisk practices – arising long after the Fourth Amendment’s ratification – empowered by arguments for the necessity of <police power>.

What is stop-and-frisk? Generally, when officers suspect a crime has been or is about to be committed, stops are initiated. In Florida v. Bostick (1991, p. 437), the Supreme Court established the test for determining a stop as “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” That encounter advances to a frisk when suspicion is strengthened through the initial contact. Reasonable suspicion that criminal activity is afoot is enough to justify the stop. Reasonable suspicion that “the person stopped is armed and dangerous” is enough to justify the frisk (Floyd v. City of New York, 2013, p. 566).

“Terry stops,” as they have come to be called, fluctuate in meaning over time. The foundational case is Terry v. Ohio (1968, p. 1), in which “rapidly unfolding and often dangerous situations on city streets” purported to necessitate expanded <police power>. The officer in Terry observed two unfamiliar men who appeared to be casing a store for a “stick-up.” The officer approached the men, asked their names, spun one man around, and patted his clothing; the officer found a revolver. While the Court stated that personal security could not be violated, it saw tension between the rights of individuals and the role of police: “reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of police to ‘stop and frisk’ – as it is sometimes euphemistically termed – suspicious persons” (Terry v. Ohio, 1968, p. 9). Here, the Court homes in on the ideograph as a site of struggle. The Court places weight on the fact that the officer had a great deal of experience and the defendants were clearly suspicious persons. Sadly, the subjectivity of suspicion preordained that stop-and-frisk would open the door to state-sanctioned discrimination by the NYPD because the standard “promotes background social biases to normative status” (Gray, Reference Gray2017, p. 280).

At the same time the Court was deciding Terry, it was also deciding Sibron v. New York, a case directly challenging the constitutionality of New York’s stop-and-frisk statute, under which an officer could stop a person “whom he reasonably suspects is committing, has committed or is about to commit a felony [or other specified offense]” (Sibron v. New York, 1968, p. 43). There was no concern with the officer’s safety specified in this statute, and the Court in Sibron sidestepped the question by noting that the officer suspected that the defendant was armed, so further inquiry into whether the statute permitted unconstitutional conduct was unnecessary.

New York defined <police power> further in People v. De Bour, determining that officers may approach individuals unengaged in “suspected criminal activity” and ask for information if “the encounter [does] not subject [them] to a loss of dignity, for where the police degrade and humiliate their behavior is to be condemned” (People v. De Bour, 1976, p. 210). The permissiveness in De Bour was clearly accepted; the prohibitions took a bit longer to sink in – after all, one person’s interpretation of degradation might look different from another’s. The Court noted that expanding <police power> in this way is supported by the fact that police play a multifaceted role in society, which includes acts of public service (People v. De Bour, 1976, p. 218). Essentially, police officers cannot do their jobs without these expanded powers. As we will later see in David Floyd, this emphasis on “suspected criminal activity” opens courts up to a new elastic term: <furtive movements>.

De Bour exposed even more complexity in the vocabulary of <police power>. For example, when does this “encounter” become a full-blown stop? INS v. Delgado attempted to clear things up by suggesting that <ordinary citizens> should know that they can “simply refuse to answer” or “disregard a police request” (INS v. Delgado, 1984, p. 218). Many in our contemporary culture would view this characterization of the <ordinary citizen> as severely misguided, which further illustrates the evolution of language use in our society. Then, however, concepts like “deterrence” and the balancing of “social costs” were woven throughout judicial history in apparent response to political and cultural cries for crime control and a brewing war on drugs.

The 1980s gave us “yuppies,” MTV, and the first female Supreme Court Justice, Sandra Day O’Connor. The decade also gave us a revolution in the ideological predilections of Americans and the Supreme Court, now centering on a jurisprudence of crime control and engaged in a war on drugs. Embracing a “new conservatism” in response to the counterculture revolution of the 1960s and 1970s, the “Moral Majority” blamed permissiveness and welfarism of the 1960s for the deterioration of the country (Weiss, Reference Weiss, Moffitt and Campbell2011 p. 90). Most legal and political critics blamed the Warren Court in significant part, arguing it was “too soft on crime” and its decisions were injurious to society because they limited the scope of <police power> (Merriman, Reference Merriman, Moffitt and Campbell2011, p. 66). These critics lamented the substantial social cost of allowing criminals to go free, and they countered with a rhetoric of deterrence.

Two Atlantic Monthly articles in particular highlight the country’s concerns at the time. The first, “Broken Windows: The Police and Neighborhood Safety,” by Kelling and Wilson, appeared in March Reference Kelling and Wilson1982. Kelling and Wilson (Reference Kelling and Wilson1982, p. 38) argued the “importance of maintaining, intact, communities without broken windows.” Basically, the police have two major functions – fighting crime and maintaining order – and the latter stems from the belief that “if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken” (Kelling & Wilson, Reference Wilson1983, p. 30).

This “Broken Windows” policy was not their own (the policy predates stop-and-frisk and tees up the practice nicely), but Kelling and Wilson (Reference Kelling and Wilson1982, pp. 32–35) used it to suggest that a vivid police presence, and deterrence practices more broadly, can impact and, ultimately, curb criminal activity. They argued that “serious street crime flourishes in areas in which disorderly behavior goes unchecked,” so society “must return to our long-abandoned view that the police ought to protect communities as well as individuals” (pp. 33, 28). If police keep obstreperous people in check, it will prevent an increase in harmful or serious criminal activity. The emphasis on communities rather than individuals reflects a prioritizing of social costs over individual privacy protections running through interpretations of <police power> that eventually reach David Floyd.

The second influential Atlantic Monthly piece, “Thinking about Crime,” more directly examines the question of deterrence. Wilson acknowledged the potential for deterrence efforts to have less of an impact than sociologists expect, but he nevertheless argues that “justice requires that we use [both deterrence and job-creation] because penalizing wrong conduct and rewarding good conduct are right polices in themselves” (Wilson, Reference Wilson1983, p. 88). For Wilson (Reference Wilson1983, p. 72), the <police power> debate comes down to weighing “the costs and benefits of crime” because that supports an ideal policy. What’s more, he noted that “experiments in deterrence have involved changes in police behavior rather than changes in the behavior of judges and prosecutors,” and the consequence of changing police behavior seems “to indicate that the more focused and aggressive the police effort, the greater the chance it will make a difference” (Wilson, Reference Wilson1983, p. 79). As we have begun to see, similar language saturates the diachronic structures of <police power> in stop-and-frisk practices.

Of course, this conversation expanded far beyond the Atlantic Monthly at the time. These articles are only meant as representations of the rhetorical culture. Supporting the expansion or extension of <police power>, attention to crime control (and a resulting drug enforcement prerogative) can be seen in the other aspects of popular rhetorical culture as well. Paste Magazine describes the decade as “the coming of age period for TV crime dramas” (Jackson, Reference Jackson2014). Shows like Magnum P.I., Knight Rider, Miami Vice, and Hill Street Blues topped the charts in the early 1980s, and even other popular shows seemingly unrelated to crime – such as Cheers, The Facts of Life, Diff’rent Strokes, and Family Ties – began systematically tackling the related issue of drug abuse, bringing these concerns to the forefront of the nation’s cultural consciousness (Jackson, Reference Jackson2014). Concerns over rising crime rates and drug use pervaded American culture, and not without reason. The country was reeling in response to the fact that crime rates had increased sharply since the late 1960s, but “between 1980 and 1993 most FBI Index crimes declined and violent crime stabilized, while incarceration (especially Black) skyrocketed” (Weiss, Reference Weiss, Moffitt and Campbell2011 n. 8).

This is perhaps because, as Erin Leigh Frymire (Chapter 11 in this volume) argues, in response to a perceived “alarming rise in the crime rate,” President Reagan and his administration “shift[ed] the focus of representative legislation and criminal prosecution away from crimes of the powerful … to crimes of the powerless” (Weiss, Reference Weiss, Moffitt and Campbell2011, p. 90). During his presidency, Reagan instructed the FBI “to resume aggressive domestic spying … [u]nder the rubric of fighting ‘terrorism,’” marking that term part of the diachronic vocabulary of our ideograph (Greenberg, Reference Greenberg2011, p. 43). Reagan initiated a responsive agenda that moved public policy sharply rightward, “diminishing legal rights, enhancing the authority of police and prosecutors, and creating an enormous penal state targeting young black and Latino offenders,” and the administration created a firm foundation for mixing national security with criminal justice, further extending <police power> (Weiss, Reference Weiss, Moffitt and Campbell2011, p. 89). But it was Reagan’s War on Drugs that served as the “principal rationale for expanding state repressive apparatuses” like stop-and-frisk practices, declaring it a “national security objective” and calling for “greater militarization of crime control domestically” (Weiss, Reference Weiss, Moffitt and Campbell2011, p. 89).

Rhetors often cite these <national security> concerns, or other similar ideographs, to sway the public toward a preoccupation with crime control. In The Mark of Criminality, McCann (Reference McCann2017, p. 6) suggested that these concerns stemmed from “discourses [that] almost always appealed to racialized fears associated with criminality,” and this “shift in political rhetoric came in direct response to the growing strength and militancy of the civil rights movement.” McCann (Reference McCann2017, p. 6) further explained, “As large social movements began to make major gains in the public square … many prominent political figures began crafting messages that framed law and order as a matter of great national concern, arguing that crime control must be a federal priority to calm the tumult of the period.” Reagan’s political rhetoric certainly hit this mark and served to significantly bolster <police power>.

On October 2, 1982, Reagan pronounced on the radio, “We’ve taken down the surrender flag and run up the battle flag … and we’re going to win the war on drugs” (Reagan, Reference Reagan1982a). He outlined the impending confrontation twelve days later from the White House Rose Garden, saying “those of you engaged in law enforcement have struggled long and hard in what must often have seemed like a losing war against the menace of crime” (Reagan, Reference Reagan1982b). In that Rose Garden address, he called crime an “American epidemic,” empowered the police, and noted that “[n]ine out of ten Americans believe that the courts in their home areas aren’t tough enough on criminals, and cold statistics do demonstrate … the failure of our criminal justice system to adequately pursue, prosecute, and punish criminals” (Reagan, Reference Reagan1982b).

Incidentally, Regan’s ideographic identifications in this address are persuasive. If your audience thinks “a certain kind of conduct is admirable, then [you] might persuade the audience by using ideas and images [or ideographs] that identify … with that kind of conduct” (Burke, Reference Burke1950, p. 55). Pursuing, prosecuting, and punishing dangerous criminals is, of course, commendable. By citing a majority of Americans and referencing their homes, he further identifies with them, and by mentioning a war and an epidemic, Reagan established the division necessary for the ideographic identifications to influence changes in his audiences’ beliefs about <police power>.Footnote ⁴

New York City continued its fight against crime well into the 1990s. Police began to delineate certain factors or considerations for stop-and-frisk encounters. They learned the vocabulary, and it informed their actions. It even populated their official forms. One such term is <high crime area>, which carries with it varied denotations and connotations depending on where you are in the history of stop-and-frisk. Being in a <high crime area> is one factor that informed the Court’s decision in Whren v. United States (1996) that a traffic violation (failing to use a turn signal and delaying to proceed at a stop sign) could justify a stop even where the officers conceded that they would not have made the stop outside suspicions of more “serious criminal activity” characteristic of the area in which the stop took place. However, in Illinois v. Wardlow (2000), the Court distinguished the <high crime area> factor as insufficient alone to justify a stop; the Court attended to the individual and his purpose for fleeing, and in doing so Justice Stevens appeared to be identifying with changes in his own rhetorical culture’s altering image of <police power>:

Here, Stevens connected legal ideographs to beliefs presented in the wider popular and political culture.

Uses and interpretations of <police power> emerge out of these historical vocabularies. The related terms in the ideograph’s vocabulary are many and complex; they offer a variety of perspectives on the meaning of <police power> and, ultimately, the application of stop-and-frisk law. Indeed, the historical vocabularies of <police power> are too rich and detailed to fully cover here. For our purposes, it is enough to demonstrate how the term has expanded and contracted since its roots in the Fourth Amendment and now shift our focus to the synchronic vocabularies of <police power> in David Floyd’s contemporary rhetorical culture. It is in this that we find the most immediate persuasive value – the force of the ideograph.

10.3 A Vocabulary of Ideographs in David Floyd

As early as 1999, the City of New York was put on notice that “stops and frisks were being conducted in a racially skewed manner,” but until 2013, it seems that “[n]othing was done in response” (Floyd v. City of New York, 2013, p. 560). What changed in 2013? David Floyd was decided within a rhetorical culture attentive to the potency and pervasiveness of <police power>. In 2013, we ushered in the “Year of the Selfie.” It was a time of over-exposure and rapid increase in technological growth. American culture entered a new “age of surveillance,” made even more apparent with the 2013 Snowden Leaks. Many scholars mark the country’s true turn toward unrestrained governmental surveillance on September 11, 2001; and, indeed, many American citizens had come to expect unfettered government surveillance in the years after 9/11, when the federal government made very real strides in obtaining the legal right to “engage in covert and overt surveillance” of its citizens (Hawkes, Reference Hawkes, McKee and DeVoss2007, p. 344). By 2013, many Americans had become so desensitized to surveillance that they largely gave up concern and freely posted intimate details about their lives on the internet. Of course, coming to expect, or worse to ignore, surveillance intrusions creates firmer vocabularies that slowly erode privacy rights and expand <police power>.

This is what it had come to on the streets of New York City: overt <police power> and eroding personal liberties. The need for this surveillance can be traced back to the war on drugs and the war on terror, to a jurisprudence of crime control and its connection to <national security>. Overt surveillance expanded in more ways than just technologically. There was a rapid rise in stops-and-frisks in the first decade of the twenty-first century. In New York in particular, the police conducted over 4.4 million Terry stops between January 2004 and June 2012. Only 6 percent of those stops resulted in an arrest, and in only 10 percent of cases was the individual who was stopped white (Floyd v. City of New York, 2013, p. 559). In the decade or so before David Floyd, the NYPD significantly pressured officers to increase stop activity, the number jumping from approximately 97,000 in 2002 to approximately 686,000 in 2011 (Floyd v. City of New York, 2013, p. 590).

By 2013, police officers, once depicted as crime fighters in popular rhetorical culture, had increasingly exposed a tendency toward violence against Black and impoverished Americans. While much police work is service rather than fighting crime – offering assistance, negotiation, and peacekeeping – the image of “blue on Black” violence began to regularly appear in the synchronic structures of society, in the news and on the streets. So, rhetorical culture shifted further, resulting in changing narratives, vocabularies, and ideologies about <police power> and how stop-and-frisk practices were actually applied. People like Leroy Downs stood up to the existing structures and persisted toward changing them. The culture was ripe for a correction, and tensions were mounting.

<Justice> topped the list of social and political ideographs at the time, particularly in terms of racial justice. Recently, political science professor Juliet Hooker spoke on National Public Radio reflecting that in “the past 10 years, some of the moments where you see that the most amount of democratic energy and activity has been in movements for racial justice” (Baldwin, Reference Baldwin2022). And she goes on, “These are the moments where you see ordinary citizens engaged in politics, trying to change policy, trying to address past wrongs.” The collective social narrative concerning <police power> had certainly evolved.

This was the rhetorical culture of David Floyd – a strong specific example of which would be the Black Lives Matter (BLM) movement. BLM is committed to fighting racism, anti-Black violence, and police brutality. The vocabularies of BLM served to diminish societal beliefs about the necessity for broad <police power>. Most of that discourse appeared in the public sphere (though, as we will see, it made its way to the legal sphere in David Floyd). The BLM movement began in 2013 with the hashtag #BlackLivesMatter on social media after George Zimmerman was acquitted in the shooting death of Trayvon Martin, which occurred in February of 2012 (HUSL, 2023). The rhetorical culture pushed back hard against Florida’s Stand Your Ground Law. Attorney Ben Crump described the public’s swift reaction:

It would be difficult to overestimate the importance of BLM and the Trayvon Martin case in the synchronic vocabularies of David Floyd. As we will see, Trayvon’s name is embossed on the pages of the opinion itself, as are the words of President Obama’s now famous speech.

President Obama spoke from the White House Press Room on July 19, 2013, concerning Trayvon’s case. David Floyd was decided less than a month later on August 12. The Obama presidency (2009–2017) surrounds Trayvon’s (and David Floyd’s) rhetorical culture; the President had been sworn in for his second term earlier that year. In his speech, he describes “a woman clutching her purse nervously” when a Black man joins her on the elevator, remarking, “That happens often” (National Archives, 2013). This and other experiences inform how the Black community views Trayvon’s case, he says, and that “community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws” (National Archives, 2013). This community and the hearers of these words create and operate within the social, synchronic vocabularies of David Floyd. The sordid history that led to this moment, and the contemporary cries for change in interpreting <police power> reverberating within it – all are imprinted on the pages of David Floyd.

* * *

These four sentences introduce Judge Scheindlin’s opinion in David Floyd, which held the city liable for Fourth Amendment and Fourteenth Amendment violations arising out of the police department’s widespread discrimination practices in the use of stop-and-frisk. In just these four sentences, an ideographic analysis reveals both diachronic and synchronic structures connected to American rhetorical culture, creating a persuasive vocabulary used to evolve <police power> to stop-and-frisk in response to evolutions in the culture that surrounds it.

The ideograph <liberty> is ever evolving in response to its meaning in contrast to other terms, such as <safety>. These terms necessarily connect to specific identifications with New York residents: “New Yorkers” coming to the “city in pursuit of liberty” mandated under the Constitution, “New Yorkers” wishing to “coexist” in “the largest city in America,” where “New Yorkers” are said to “treasure their liberty.” Sheindlin highlights New York’s history as a safe haven of <liberty>, long protected by the Constitution, and she connects with a vibrant contemporary rhetorical culture of New Yorkers who are proud of their city and their freedoms under that Constitution. Of course, those are just the first four sentences.

The remainder of the introduction distances the opinion from the historical emphasis on “fighting crime,” mentioning the term just once throughout the entire case (Floyd v. City of New York, 2013, p. 557). And, in a subsequent paragraph, Scheindlin distances her opinion from the remnants of Whren and <high crime areas>, writing “[t]here is no basis for assuming that an innocent population share the same characteristics as the criminal suspect population in the same area” (p. 560). Scheindlin’s initial privileging of <liberty> and distancing from vocabularies previously used to expand <police power> signals a shift in legal and cultural discourse surrounding stop-and-frisk jurisprudence. The remainder of the opinion does not disappoint that expectation.

Admittedly, the opinion becomes more persuasive with citation to legal precedent, which we have already seen to be riddled with ideographs. This is necessary to the practice of law. Others interrogating legal texts through an ideographic analysis similarly recognize that “when a significant change in the rhetorical culture occurs, the legal system … must adhere to old vocabularies that inadequately encompass new situations” (Hasian et al., Reference Hasian, Condit and Lucaites1996, pp. 326). For example, identifying with the historical goals of <police power> centered on deterrence, Scheindlin acknowledges that “police will deploy their resources to high crime areas,” and that there are “benefits [to] communities where the need for policing is greatest” (Floyd v. City of New York, 2013, pp. 562–563). The legal precedent in David Floyd traces through the early vocabularies of <police power> and stop-and-frisk jurisprudence described previously. Beginning with the Fourth Amendment and working quickly through Terry, Scheindlin employs Bostick, Warlow, and De Bour to define stop-and-frisk law under the Fourth Amendment – just as we did before.

However, the notable synchronic interpretations of key terms in David Floyd significantly outnumber interpretations emphasizing their historical meanings. This is evident throughout Scheindlin’s introduction, such as when discussing the “constitutionality of police behavior,” referencing the Supreme Court’s concern for “community resentment” and “personal security,” espousing that “no one should live in fear,” and when acknowledging the need for improvements in fostering a community that is less “distrustful of the police” (Floyd v. City of New York, 2013, pp. 556–557). This language indicates to the contemporary reader a clear connection with the surrounding rhetorical culture – where BLM has begun to take shape, after Trayvon’s killer was set free, and there is a strong sentiment among many in the Black community that their children are not safe on the streets, not in spite of but because of <police power>.

While we read David Floyd, Scheindlin’s antipathy for the stop-and-frisk practices of the NYPD becomes clear as she questions historical vocabularies that once supported expanding interpretations of <police power>. At times, she even seems incredulous. For example, when she remarks:

At the time she is writing, the surrounding rhetorical culture is erupting with a similar incredulity that the law can be so devoid of racial <justice>. Scheindlin gives voice to these beliefs, and, by questioning deterrence practices that American rhetorical culture once praised, she creates a more persuasive demand for change.

The remainder of the case highlights many terms (“a vocabulary of ideographs”), including <liberty>, <high crime area>, and <furtive movements>. Stop-and-frisk opponents often home in on these terms in their critiques, noting the “ready vocabulary of rote platitudes that courts routinely accept as sufficient to show reasonable suspicion” (Gray, Reference Gray2017, p. 279). These are the terms officers learned to incorporate into their vocabularies to bolster their authority to stop-and-frisk.

Some terms were even provided in a checklist on official forms, for example NYPD’s Unified Form 250, which includes “furtive movements,” “high crime area,” “appropriate attire,” and a “suspicious bulge” (Gray, Reference Gray2017, p. 279). Officers need only check the correct term to justify their behavior. In David Floyd, Scheindlin posits that the number of NYPD stops from 2004 to 2012 that lacked reasonable suspicion is likely higher than 200,000 based upon that fact that “‘furtive movements,’ ‘high crime area,’ and ‘suspicious bulge’ are vague and subjective terms” (Floyd v. City of New York, 2013, p. 559). These terms, with elastic meanings, sometimes inhibit the clear articulation and implementation of the law, even if they also provide the law room to grow.

The trouble with <furtive movements> is particularly illustrative. <Furtive movements> can purportedly indicate criminal activity is afoot. While exemplifying inadequacies in NYPD training, Scheindlin describes one officer’s testimony that “furtive movement is a very broad concept” (Floyd v. City of New York, 2013, p. 561). The ideographic nature of <furtive movements> is itself described in this portion of the opinion, as Scheindlin seems to question the law’s commitment to this language. Language once customary and supportive of expanding <police power> to stop-and-frisk is viewed within the context of an evolving rhetorical culture and has lost nearly all meaning. According to officers, the term can include:

The unsettled meaning of the term perhaps explains why there is a disconnect in the NYPD’s application of stop-and-frisk law and a need for evolution in the law; the vocabulary of <police power> seems to have expanded into obscurity. As Scheindlin bemoans, “it is no surprise that stops so rarely produce evidence of criminal activity” (Floyd v. City of New York, 2013, p. 561).

David Floyd further provides descriptions of <furtive movements> as vague, subjective, and potentially “affected by unconscious racial biases” (Floyd v. City of New York, 2013, p. 578). Similarly, the term “fits description” is found troubling because it can be used to describe a large part of the population, “such as black males between the ages of 18 and 24” (Floyd v. City of New York, 2013, p. 579). A <high crime area> is similarly problematic because it might include all of Queens or Staten Island, according to Scheindlin, who employs voices outside the legal community to help demonstrate unconscious biases, citing a research study in psychology, with “evidence that officers may be more likely to perceive a movement as indicative of criminality if the officer has been primed to look for signs that ‘crime is afoot’” (Floyd v. City of New York, 2013, p. 581). Scheindlin’s opinion systematically questions the vocabulary of <police power> to stop-and-frisk, highlighting inconsistencies between interpretations in American rhetorical culture and the law.

While discussing the notion that Black individuals are more suspicious looking somehow, Scheindlin makes more synchronic connections, quoting President Obama’s personal experiences with stereotyping in his Trayvon Martin speech and Ekow Yankah’s op-ed in the New York Times (Floyd v. City of New York, 2013, p. 587). The portion of Yankah’s piece that Scheindlin chooses to include reads in part: “Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you” (Floyd v. City of New York, 2013, p. 588). The image of “Mr. Martin’s hoodie,” which takes on its own ideographic nature, embosses a rich rhetorical identification within the opinion, and the pejorative use of “reasonable” demonstrates a clear shift in the term’s typical connotation in legal discourse. Ultimately, this language transforms stop-and-frisk practices, reflecting a shift in the surrounding rhetorical culture’s beliefs about <police power> and demonstrating the power of the ideograph at work.

The opinion closes with a final cultural reference: Charles Blow’s article, “The Whole System Failed Trayvon Martin,” from the New York Times. Blow writes: “The idea of universal suspicion without individual evidence … is pervasive in policing policies … regardless of the collateral damage done to the majority of innocents. It’s like burning down a house to rid it of mice” (Floyd v. City of New York, 2013, p. 667). Employing this cultural language bolsters the opinion’s persistent questioning and condemning of pervasive <police power>. The vocabulary of ideographs and related language use in David Floyd results in a transformation in how our legal system applies a lengthy and complex legal history surrounding stop-and-frisk practices. But the opinion reveals more than changes in the law; it reflects changes in the surrounding rhetorical culture. Turning the last page of the opinion feels something like walking on fresh-cut grass. The world is familiar and changed all the same. After cursorily mapping the ideographic structures, we are left with the sense that some ideographs – <police power>, <liberty>, <justice> – are forever changed with the inclusion of David Floyd in the textual archive of our rhetorical culture.

Yet, even with David Floyd now in rearview, some would argue that “stop and frisk programs leave citizens more vulnerable to police than to criminals” even today (Gray, Reference Gray2017, p. 277). Undoubtedly, David Floyd’s vocabulary of ideographs responds to changes in the surrounding rhetorical culture. The introduction of stop-and-frisk practices and expanding <police power> once intimated increased protections and security for the public in efforts to curb crime and wage war on drugs. Years later, just as David Floyd came before the court, there had been profound shifts in American rhetorical culture, where people began to truly question the costs of these practices – costs related to terms with fluctuating meanings: ideographs, such as <liberty>, <privacy>, and <police power>.

The concerns of the rhetorical culture transformed as the evolving vocabulary of ideographs informed cultural beliefs and behaviors, and so the law’s discursive identifications with that rhetorical culture adjusted to align. The plaintiffs in David Floyd did not oppose the constitutionality of the NYPD’s stop-and-frisk law as a tool. Rather, they opposed inflexible interpretations of <police power> and the constitutionality of how the tool is used by the NYPD. Judge Scheindlin’s opinion adjusts and aligns the law in this landmark stop-and-frisk case, but perhaps that is not enough, and the tool (stopping and frisking) itself is unreasonable.

10.4 Conclusion

In the end, the law, like any other discourse object, is constantly in a state of flux. Legal ideographs ebb and flow with meaning, just as their cultural counterparts do. In David Floyd, the pendulum of stop-and-frisk swings away from <police power> and toward personal <liberty>. Although the data may still be underreported (Center for Constitutional Rights, 2020), the NYPD recorded just 8,947 stops (61 percent innocent, 10 percent white) in 2021 compared with 532,911 (89 percent innocent, 8 percent white) in 2013 (New York Civil Liberties Union, 2023). Despite a reverberation of racial <justice> running vibrantly through American rhetorical culture, “the hard truth is that under Fourth Amendment law, Black life is [still] undervalued” (Carbado, Reference Carbado2022, p. 20). Notwithstanding, the reduction in stops is significant. David Floyd offers hope, but discursive and cultural changes can nudge the pendulum stealthily backward. When people identify with repeated calls for <public safety> and <national security>, they begin to form warranted beliefs about <police power>; they are more easily persuaded to limit the scope of <liberty>, for example, in the name of <necessity> (Hasian, Reference Hasian2012). This is the delicate, powerful, and essential tension imbedded in the Fourth Amendment.

Ideographic analysis illuminates embedded tensions in any rhetorical situation. When we extend beyond that analysis and begin to deploy ideographs ourselves, we no longer merely see, we do; we generate productive tensions rather than simply highlight them. Ideographic analysis would be particularly useful in legal writing education and for the professional legal practitioner, whose purpose is to persuade by identifying long-standing precedent (a diachronic analysis) and arguing for change in a present circumstance.Footnote ⁵ Knowledge of contemporary social commitments to evolutions in legal discourse, coupled with a rich understanding of the history of their use, results in the most effective advocate.

Of course, advocacy extends well beyond the courthouse. Ideographs in the public sphere, in community writing, and, as we saw with BLM, on social media platforms are perhaps the most apparent in terms of changing social beliefs. Employing ideographs in these contexts could significantly change the landscape of American rhetorical culture. What’s more, ideographic analysis provides similar benefits in the private sphere. A term (e.g., <family>) may take on an elastic meaning within a personal relationship. Describing the ideograph diachronically and synchronically would show whether extending or limiting the term’s use is likely to create a collective commitment within that relationship.

McGee understood the ideograph’s present importance. He saw that “even a complete [historical] description … leaves little but an exhaustive lexicon understood etymologically and diachronically – and no ideally precise explanation of how ideographs function presently” (McGee, Reference McGee1980, p. 12). After all, persuasion is kairotic – it is fit for a particular occasion, aimed at an opportune and decisive moment rather than for just any general context. While the most effective rhetor will not ignore the historical lexicon of ideographic uses, they must understand the present function of ideographs to employ them persuasively. Here, we recognize ideographs as forces, because they move us to act, rather than as merely tools for analysis.

McGee’s process provides a theoretical framework for describing and explaining material and symbolic environments, as well as their latent rhetorical tensions. He efficaciously crafted this framework, as evident in spans of ideographic analyses following the publication of his piece. Still, we can do more with ideographs than analyze and explain. Mapping ideographs provides a lens of awareness, but also an educational tool, a pattern for persuasion, and perhaps even an apparatus for change. The value of attending to evolutions in a vocabulary of ideographs expands beyond mere academic musings on the intersections of law and rhetoric across time (although that can be diverting). People identify with this vocabulary in such a way that it influences what they think and how they act. That’s powerful in any situation. Yet, despite several decades of ideographic inquiry, many simply gloss over the ideograph’s potency in favor of the <safety> of analysis. Perhaps it is time to recirculate the argument that ideographs are forces of social commitment, conflict, and control.