Cicero: Legal Stases and the Supreme Court

Document Type

Book Section

Publication Date

4-2024

ISBN

9780817361396

Abstract

Brief Excerpt:

During his confirmation hearings in 2005, soon-to-be Chief Justice of the United States John Roberts asserted that Supreme Court justices interpreting laws should behave as metaphorical umpires, not players: “Umpires don’t make the rules; they apply them. . . . And I will remember that it’s my job to call balls and strikes and not to pitch or bat.” Chief Justice Roberts’s claimed stance is one of judicial restraint—that judges should apply the law as the legislature wrote it, not make the law. But judicial decisions regarding the interpretation of statutes—including the Supreme Court’s—lie somewhere between this “apply ” and “make” polarity. To interpret a law is to discern meaning that the law itself has not made explicit. When judges are cast in an interpretive role, it can be hard to tell whether they are “players” contributing to the law’s meaning or umpires who simply “call” meaning as the legislature wrote it. Some judges take very active roles in discerning statutory meaning. Just before his retirement from the bench, US Seventh Circuit Court of Appeals Judge Richard Posner endorsed “judicial interpretive updating” as a method of statutory interpretation in a landmark case holding that sexual orientation discrimination is a form of illegal sex discrimination. Using this interpretive method, judges “update” older laws by giving “fresh meaning” to statutory text that “infuses [it] with vitality and significance today.”1 In contrast, Chief Justice Roberts and others see the proper judicial role as simply to apply the written text. This dichotomy did not concern the Roman orator Cicero, whose rhetorical writings extensively addressed argumentation about written texts. Unconstrained by stock interpretive methods or philosophical debates about judging Chapter 12 191 roles, Cicero’s approach turned on dialogic persuasion. He urged orators arguing written texts to appeal to judges sometimes as umpires, sometimes as players, and often as both. A consummate player himself, Cicero was always ready to switch up his arguments to favor the side he was on. Born Marcus Tullius Cicero (106–43 BCE), Cicero, sometimes called “Tully,” was a leading jurist, orator, senator, politician, rhetorical theorist, and philosopher during the later Roman Republic...

First Page

190

Last Page

206

Num Pages

17

Series

Rhetoric, Law, and the Humanities

Publisher

The University of Alabama Press

Editor

Francis J. Mootz III, Kirsten K. Davis, Brian N. Larson, & Kristen K. Tiscione

Book Title

Classical Rhetoric and Contemporary Law: A Critical Reader

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