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

Abstract

This essay examines the judicial creation of “right moments.” Applying the rhetorical concept of kairos, the essay begins with Justice Holmes’s creation of a kairic opening to expand federal habeas corpus review and moves through Justice Roberts’s use of a kairic opportunity to restrict the Voting Rights Act to Justice Alito’s isolation of the kairic moments of corporate creation to extend the reach of the Religious Freedom Restoration Act.

Kairos is the nuanced sense of timing at work when the right legal argument seems to appear out of nowhere at exactly the right time. Understanding this sense of timing appears crucial to the acceptance of an unconventional legal argument, especially one whose purpose is to change the law. In addition to exploring the advantages and limitations of kairos as a rhetorical tool and method of rhetorical analysis, the essay suggests an expanded definition and application of kairos for the purposes of legal persuasion and argument.

Keywords: Rhetoric, kairos, persuasion, Supreme Court, Holmes, Roberts, Alito, habeas corpus, Voting Rights Act, Religious Freedom Restoration Act