Creating Kairos at the Supreme Court: Shelby County, Citizens United, Hobby Lobby, and the Judicial Construction of Right Moments

Kairos is an ancient rhetorical concept that was long neglected by rhetorical scholars, and its significance to legal argument and persuasion has been little discussed. Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the narrative accounting for—how long? what next?—while kairos is the more metaphorical imagining as—at what point? in what space? I begin with a brief overview of kairos. Suggesting that it represents a quintessential judicial use of kairos, I next examine Justice Holmes’s dissent in Frank v. Mangum, the Supreme Court decision denying habeas relief to a Jewish factory manager later hanged by a mob in Georgia. Then I discuss the crucial lessons in kairos that can be drawn from pairing that dissent with Justice Holmes’s opinion for the Court in a seemingly indistinguishable case ten years later. I next consider recent examples of kairos: first as “the most opportune time” in an opinion by Chief Justice Roberts marking a turning point in the life of the Voting Rights Act, and then as “the essential moment” in an opinion by Justice Alito expanding the reach of the Religious Freedom Restoration Act. The conclusion synthesizes these themes, addressing some advantages and limitations of kairos as rhetorical method