Brad Desnoyer and Anne Alexander, both of the University of Missouri School of Law, have published Race, Rhetoric, and Judicial Opinions: Missouri as a Case Study at 76 Maryland Law Review 696 (2017). Here is the abstract.
This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes. The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use less explicit race-based rhetoric. The Essay proposes that this rhetoric has been replaced with majoritarian enthymemes, i.e., unstated assumptions about race. These majoritarian enthymemes allow the underlying narratives of historic court opinions to retain vitality even outside of the courts. The Essay concludes that long-lasting societal change has been elusive, in part, because, without explicitly rebutting majoritarian narratives and giving voice to counter-narratives, even progressive judicial opinions cannot effectively challenge the status quo.Download the essay from SSRN at the link.