Judicial Rhetoric and Radical Politics: Sexuality, Race, and the Fourteenth Amendment

“Judicial Rhetoric and Radical Politics: Sexuality, Race, and the Fourteenth Amendment” takes up U.S. judicial opinions as performances of sovereignty over the boundaries of legitimate subjectivity. The argumentative choices jurists make in producing judicial opinion delimit the grounds upon which persons and groups can claim existence as legal subjects in the United States. I combine doctrinal, rhetorical, and queer methods of legal analysis to examine how judicial arguments about due process and equal protection produce different possibilities for the articulation of queer of color identity in, through, and in response to judicial speech.\ud \ud The dissertation includes three case studies of opinions in state, federal and Supreme Court cases (including Lawrence v. Texas, Parents Involved in Community Schools vs. Seattle School District No. 1, & Perry v. Brown) that implicate U.S. Supreme Court Justice Anthony Kennedy’s development and application of a particular form of Fourteenth Amendment rhetoric that I argue has liberatory potential from the perspective of radical (anti-establishmentarian and statist) queer politics. I read this queer potential in Kennedy’s substantive due process and equal protection arguments about gay and lesbian civil rights as a component part of his broader rhetorical constitution of a newly legitimated and politically regressive post-racial queer subject position within the U.S. constitutional state. My queer rhetorical analysis of judicial speech contributes to the project of bridging post-structural philosophy with everyday material relations. By theorizing queer politics in terms of institutional legal rhetoric, I offer a method for evaluating judicial argumentative choice in terms of radical queer of color political goals