UMD Theses and Dissertations
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Item The Paradox of Expertise: U.S. Abortion Law from 1973-2022(2023) Farhat, Aya H; Parry-Giles, Shawn; Communication; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)In the last fifty years, abortion rights in the United States have gone from being criminalized in most states, to being legal on a federal level, to being regulated through individual state legislatures. In 1973, the landmark abortion case Roe v. Wade granted fecund persons a federal right to abortion for the first time in this nation’s history. To do so, the Supreme Court conceived of abortion rights within a rhetoric of expertise. The Court relied on legal, medical, and personal conceptions of expertise as knowledge, procedure, and deference to ground abortion rights in a precedent of privacy tied to the trimester framework. Since its codification, multiple cases at the Supreme Court and lower court levels have challenged the precedent established in Roe. These challenges have worked to both protect and constrict fecund persons’ abortion rights to various degrees. Each of these post-Roe cases have reconfigured the triangulation of expertise to make sense of abortion rights in their particular political and temporal moments. For instance, the landmark abortion case Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) sought to reinforce the precedent in Roe by clarifying its legal and medical inconsistencies with the undue burden standard. Thirty years later, the Court in Dobbs v. Jackson Women’s Health Organization (2022) decided such inconsistencies warranted returning the abortion decision back to the states. The ability for abortion rights to undergo such a significant shift legally exposes the rhetorical paradox of expertise. The last fifty years of abortion law indicates the inability of legal and medical knowledge and procedures to consistency define the boundaries of legal abortion. But it also shows how the Court has deferred to these expert institutions time and time again to first expand, and then constrict, fecund persons’ personal expertise over the abortion decision. The Paradox of Expertise explores the complex triangulation of expertise in abortion law through an analysis of three pivotal U.S. Supreme Court cases: Roe (1973), Casey (1992), and Dobbs (2022). In each of these cases, the justices interpreted this triangulation in differential ways to shift the boundaries of legal abortion. In Chapter One, I explore how Roe read the legal-medical history of abortion to authorize the trimester framework and regulate fecund persons’ abortion rights and expertise. By regulating abortion through the trimester framework, the Court entangled legal, medical, and personal expertise in a complex web that ultimately privileged legal and medical expertise throughout a fecund person’s pregnancy. In Chapter Two, I analyze Casey to show how the Court responded to the ambiguities presented by the trimester framework. In Casey, the Court reinterpreted the precedent in Roe to affirm abortion rights under an undue burden standard. Because the Court failed to define this standard in a consistent manner, future courts continued to battle over the ambiguities of abortion law. In Chapter Three, I examine the decision in Dobbs to show how such legal battles over expertise allowed the Court to reinterpret abortion history and warrant returning the abortion issue back to the states. But because the Dobbs Court failed to clarify the past inconsistencies in abortion law, state legislators, medical physicians, and fecund persons struggle to make sense of the legal, medical, and personal barriers to abortion access in the present moment. Today, the current landscape of abortion politics is still mired in the paradox of expertise that foreshadows the long road ahead for pro-abortion advocates and those seeking abortion access and care.Item Culture Warriors Go To Court: The Supreme Court and the Battle for the "Soul" of America(2015) Spivey, Michael; McIntosh, Wayne; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)ABSTRACT Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE "SOUL" OF AMERICA Michael O. Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a "culture war" has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent "truth." According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court's treatment of each of these issues is analyzed in turn. In addition, the Supreme Court's abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key "modalities" of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court's jurisprudence; others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the "meaning" of America, that is, what social values will be protected under law.Item Rhetorical Contingency and Affirmative Action: The Paths to Diversity in Regents of the University of California v. Bakke(2010) Carr, Martha Kelly; Parry-Giles, Trevor S.; Communication; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)In Regents of the University of California v. Bakke (1978), the Supreme Court issued a landmark decision addressing the constitutionality of university affirmative action policies. Justice Lewis F. Powell Jr. concluded that universities could consider race as a factor to achieve the goal of a diverse student body. This study situates Bakke within its broader rhetorical environment of public discourses about race, law, and education, examining the selection process by which Powell found “diversity” to be the most justifiable answer to the question of affirmative action's permissibility. Using materials retrieved from Powell's archives at Washington and Lee University, including memoranda, personal notes, and draft opinions, the project makes three interrelated arguments. First, this study asserts that the Supreme Court is a rhetorical institution, dependent upon rhetoric for its inventional needs and its credibility while simultaneously cloaking its reliance on rhetorical invention in a rhetoric of formalistic inevitability. As such, it attends to how the legal invention process, explicated by classical rhetorical theorists and manifest in contemporary legal practice, enhances understanding of Powell's decision. Second, the project examines how Powell pulled from far-reaching rhetorical and ideological environments for his “diversity” rationale. Here, the study traces public discourses about race and examines Bakke's legal briefs, outlining the appeals to multiculturalism, colorblindness, race consciousness, and individualism that comprised Powell's inventional warehouse. A critical scrutiny of Powell's opinion-writing process reveals an inventional program guided by an ideological negotiation of these competing and compelling rhetorics of race and education in the United States. Third, this project argues that Powell's opinion-writing process is a corporate, rather than individual, process. Examining the negotiations between Powell, his law clerks, and fellow justices further illuminates the rhetorical nature of the Court, as well as the ideological influences upon individual Court opinions. The study concludes by explicating how Bakke reflects the ways that the Supreme Court works as part of a broader rhetorical culture, constructing its decisions from the materials of public arguments and the architecture of jurisprudential norms. Finally, the study explores the ideological circulation of Powell's decision: divorcing the goal of diversity from the justification of past discrimination.Item PARTY WITH THE COURT: POLITICAL PARTIES AND THE NATIONAL JUDICIARY IN THE CREATION, MAINTENANCE, AND TRANSFORMATION OF POLITICAL ORDERS(2005-07-26) Hays, Bradley David; Graber, Mark A.; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)In the United States, the national judiciary plays a vital role in the creation, maintenance, and transformation of political orders. Political parties, the institutions primarily responsible for the operation of a political order, tend to be large and heterogeneous. This heterogeneity creates disjunction within the party and threatens to undermine partisan unity. In order to hold power over an extended period of time, parties-in-power must diffuse their intra-party tension. This dissertation explores the phenomena of parties using courts to diffuse intra-party tension by displacing highly divisive issues onto the national judiciary. This exploration reveals a pattern whereby the dominant wing of the party-in-power consistently secures its preferences through the courts to the detriment of minority wing preferences. To elucidate this pattern, three different political orders are examined. First, the Republican political order is examined to reveal how the dominant, conservative wing of the Party used the courts to protect against invasive regulatory schemes favored by the progressive, minority wing of the Party. Second, an examination of the New Deal/Great Society Democratic political order reveals the role the courts played in enabling the liberal, dominant wing of the Party to circumvent conservative, minority wing obstruction of civil rights and how the courts helped liberal Democrats woo African American voters so as to transform and liberalize the Democratic Party. Third, the period of divided government is detailed to reveal how the dominant, economically conservative wing of the Republican Party uses the Supreme Court to manage issues highly salient to the socially conservative minority wing. Judicial administration of religion in education, homosexual rights, and abortion resulted in the Republican Party eschewing those issues from its legislative agenda and, simultaneously, resulted in center-left policy consistent with dominant wing preferences. By judicializing social issues, the Republican Party created greater Party unity than what would otherwise be possible, which enabled it to rise to power at the turn of the 21st Century. The party-court dynamic has implications for judicial power, party government, and constitutional theory and each are explored in the conclusion.