ABSTRACT

This article considers the relationship between rhetoric and judicial activism. A term first coined by Arthur Schlesinger Jr. in 1947, the charge of judicial activism has become ubiquitous in modern political and legal discourse, frequently leveled at judicial opinions with which one disagrees. Despite focused attention from legal scholars in recent years, the term continues to defy easy definition. After surveying the relevant legal scholarship on judicial activism, this article considers a widely decried example of activism in action. Taking the 2003 case of Hillary Goodridge v. Department of Public Health as a case study, the authors examine the five judicial opinions, paying particular attention to how each justice justifies his or her decision with recourse to one of three rhetorical forms (legal analysis, the discourse of science, and public consensus). We conclude that the legitimacy of judicial activism is a function of particular rhetorical forms (and not others).

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