An Attack on Character: Normal Proceedings in the Court

JUSTICE KENNEDY: You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects? Congress could have a uniform definition of marriage that includes age, consanguinity, etc., etc.?


GENERAL VERRILLI: No, I'm not saying that, Your Honor. I think if Congress passed such a statute, then we would have to consider how to defend it. But that's not -­


JUSTICE KENNEDY: Well, but then there is a federalism interest at stake here, and I thought you told the Chief Justice there was not.

~

On Wednesday March 27, The Supreme Court heard the case States v Windsor, in which lawyers made compelling arguments for and against the repeal of the Defense of Marriage Act.  The justices, on the other hand, did their best to rhetorically manipulate the lawyers to support the justice’s own side.  This is clearly seen in Kennedy’s use of leading questions to weaken Verrilli’s credibility in the eyes of the other judges.  Chief Justice Roberts had asked General Verrilli if the federal government had the ability to give benefits to same sex couples if the state had voted that they could not be married (ie, whether the state’s would lose their rights to decide on the matter).  Verrilli answers no, they would not lose their rights.  Later, when he says that we would have to defend the statutes, Kennedy points out that that means that we have an issue regarding federalism and implies that Verrilli’s earlier response had been a lie.

Kennedy’s audience appears at first to be just the judges in the room, but this isn’t just some case about a divorce or petty theft.  It is a Supreme Court case regarding gay marriage, one of the most controversial social issues of the 21^st century.  Therefore, the people paying attention to the case stretches beyond the court room to encompass many Americans (including Ms. Parham’s AP Language and Composition classes).  And everyone who is paying attention – as well as those who are not – has some sort of a stance on the matter.  This emotional investment in the issue makes it difficult to pull out the warrants behind the claims made in the debate.  Let’s take a look, shall we?

1.    Justice Kennedy’s question here is very pointed; he knows how Verrilli would answer and phrases it so that the warrant (The states constitutionally have the right to regulate marriage; Congress does not have the power to make this decision on a national level) is a fact that must be agreed with. 

2.    Verrilli’s response is rather self-explanatory; he states that if congress passed legislation on gay marriage, it would need to be defended.

3.    This is where it gets truly interesting.  Now the warrant behind Justice Kennedy’s words isn’t just that federalism is at stake and therefore Verrilli is wrong, but rather that Verrilli lied and therefore cannot be trusted.

The section is an ad hominem, an attack on Verrilli’s ethos.  Kennedy’s tone is accusatory as he reminds Verrilli that he’d “told the Chief Justice there was not” an attack on federalism in this case.  

The implication at the end of the section isn’t the only part attacking Verrilli.  Kennedy also uses words such as “traditional authority,” “supercede,” and “regulate marriage in all respects” to slowly and subtly attack Verrilli and his arguments.  “Traditional authority” brings up the scare tactics used earlier to appeal to fear of the unknown, as well as bring up almost a nostalgia that surrounds traditions.  “Supercede” implies that what Verrilli suggests would make Congress an all powerful tyrant, casting aside the opinions of the states.  The final sound bite that stood out to me (“regulate marriage in all respects”) is one that appeals to the complexity of marriage and implies that if the states were to lose the right to decide on gay marriage, they would lose the right for all other decisions regarding marriage.
Verrilli never really regains control during this section of the case; Kennedy successfully makes a case that discredits his ethos, and even denies him the chance to defend himself.  

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