Vermont Bar Journal, Vol. 40, No. 2 | Page 33

William Brennan : Master of Arrangement
William Brennan ’ s opinions , while lacking the originality and verve of the Holmes and Jackson opinions , are nonetheless models of clarity and organization . If they do not sing , they certainly converse easily with modern readers , telling compelling stories as they go . Like Hugo Black ’ s opinions , Brennan ’ s opinions feature everyday language occasionally salted with a timely metaphor or a vivid turn of phrase .
The opening paragraph of Brennan ’ s majority opinion in Craig v . Boren , a genderdiscrimination case , captures the issue at hand in just two sentences . 24 The interaction of two sections of an Oklahoma statute , Okla . Stat ., tit . 37 , ss 241 and 245 ( 1958 and Supp 1976 ) prohibits the sale of ‘ nonintoxicating ’ 3.2 % beer to males under the age of 21 and to females under the age of 18 . The question to be decided is whether such a gender-based differential constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the Fourteenth Amendment . 25 After establishing the standing of the petitioner , a licensed vendor of 3.2 % beer , Brennan set the stage for his analysis by emphasizing that “ classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives .” 26 Under Reed v . Reed 27 and other cases , he noted , administrative ease and convenience are not “ sufficiently important objectives to justify gender-based classifications .” 28 “ We turn then ,” he continued , “ to the question whether , under Reed , the difference between males and females with respect to the purchase of 3.2 % beer warrants the differential in age drawn by the Oklahoma statute . We conclude that it does not .” 29
Explaining that conclusion , Brennan accepted the state ’ s objective of protecting the public health and safety , but not the statistics it cited to show that a gender classification regarding the purchase of 3.2 % beer served that goal . He observed : Suffice to say that the showing offered by the appellees does not satisfy us that sex represents a legitimate , accurate proxy for the regulation of drinking and driving . In fact , when it is further recognized that Oklahoma ’ s statute prohibits only the selling of 3.2 % beer to young males and not their drinking the beverage once acquired ( even after purchase by their 18-20-year-old female companions ), the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed ’ s requirement that the gender-based difference be substantially related to achievement of the statutory objective . 30
Spurred by Brennan ’ s depiction of the folly of prohibiting 18-20-year-old males from buying beer when their sisters and girlfriends could buy it for them , the Court invalidated Oklahoma ’ s 3.2 % beer statute for “ invidiously discriminat [ ing ] against males 18-20 years of age .” 31
Justice Brennan could appeal to pathos as well as logos , especially in a dissent , and the following excerpt from his dissent in McCleskey v . Kemp reflects that ability . 32 In McCleskey , the majority affirmed the imposition of a death sentence on a black defendant who had killed a white victim in Georgia , despite the defendant ’ s showing of racial inequities in capital sentencing there . Brennan wrote : The Court ’ s decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution . Nothing will soften the harsh message they must convey , nor alter the prospect that race undoubtedly will continue to be a subject of discussion . McCleskey ’ s evidence will not have obtained judicial acceptance , but that will not affect what is said on death row . However many criticisms of today ’ s decision may be rendered , these painful conversations will serve as the most eloquent dissents of all . 33 Brennan uses only one rhetorical device in this passage , but it is an effective metaphor and its power is greater because it concludes the passage . Despite a lack of rhetorical wizardry , Brennan ’ s appeal to pathos succeeds because his words force the reader to confront racial disparity in the imposition of the death penalty .
Conclusion
Lawyers can become more persuasive by using rhetorical devices , especially arrangement and style . For a primer on style , see note 1 , below , and consult the opinions of Justices Holmes and Jackson . Still , style alone does not an effective writer make . Arrangement is also crucial , as the Black and Brennan opinions cited here illustrate . Few of us can muster the verve of Holmes or Jackson , but all of us can improve the arrangement of our writing . That effort might even inspire a flash of anaphora or antanaclasis now and then , much to the author ’ s benefit .. Careful arrangement ensures comprehension . Careful arrangement with a bit of style promotes persuasion . ____________________ Brian Porto , Esq . is a Professor of Law at Vermont Law School , where he teaches legal writing , sports law , and election law . ____________________
1
Brian Porto , Making It Sing : How Rhetorical Techniques Can Improve Your Writing , 40 , no . 2 Vermont Bar Journal p . 36 ( Summer 2014 ).
2
Aristotle , Rhetoric , Bk . 3 , ch . 13 , p . 220 .
3
Ethos is best achieved by providing trustworthy information to the reader or the audience . Although it is not a focus of this article , ethos , like logos and pathos , is as relevant to a successful argument today as it was in Aristotle ’ s day .
4
Edward P . J . Corbett , Classical Rhetoric for The Modern Student p . 31 ( 2 nd ed . 1971 ).
5
Michael H . Frost , Introduction to Classical Legal Rhetoric : A Lost Heritage p . 4 ( 2005 ).
6
Corbett , supra note 4 , at 461 .
7
Id .
8
Id . at 463 .
9
Id . at 464 .
10
Id . at 471 .
11
Id .
12
Id . at 464 .
13
Id . at 473 .
14
Id . at 479 .
15
Id .
16
Id . at 481 .
17
Id . at 482 .
18
Id .
19
332 U . S . 463 ( 1948 ).
20
Id . at 464 .
21
Id . at 465 .
22
372 U . S . 335 ( 1963 ).
23
Id . at 342 .
24
429 U . S . 190 ( 1976 ).
25
Id . at 191-192 .
26
Id . at 197 .
27
404 U . S . 71 ( 1971 ).
28
Craig v . Boren , 429 U . S . at 198 .
29
Id . at 199 .
30
Id . at 204 .
31
Id .
32
481 U . S . 279 ( 1987 ).
33
Id . at 344-345 .
Rhetoric Revisited
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