Trickle-Down Bullying and the Truly Great American Response: Can Responsible Rhetoric in Judicial Advocacy and Decision-Making Help Heal the Divisiveness of the Trump Presidency?

64 Pages Posted: 3 Nov 2017

Date Written: November 1, 2017

Abstract

This article addresses the trickle-down effect of the divisive rhetoric of the 2016 presidential election on American culture. More specifically, this article examines how the election has had the unfortunate result of validating prejudice. Bigots instantly were emboldened. Hate-crimes rose in both rural America and even in purported “blue” safe havens. What a president does – or even conduct a president tacitly approves – signals acceptability of such conduct. The most pronounced and long-term effect may be on our children.

Trickle-down bullying can be explained in part by the science surrounding “system one” thinking. Such thinking arises from immediate perceptions or impressions, rather than reason and logic. A parent can spend hours trying to explain to a child that a Trump presidency does not make bullying, let alone, prejudice, acceptable. But a child knows what a child sees. Despite Trump’s divisive rhetoric, America handed Trump the keys to the White House.

This article posits that efforts to heal the current divisiveness must be advanced on multiple fronts, specifically including use of responsible rhetoric in both judicial advocacy and judicial decision making. Responsible rhetoric recognizes the power of the pen. Just as a presidential tweet can have reverberations around the world, well-crafted judicial opinions have the power to guide America back to the fundamental principles of our founding fathers. In particular, we all need to be reminded of the simple-to-understand fundamental notion that “my rights end where your rights begin.” That little document signed in a drafty hall in Philadelphia in 1776 might just be the common touchstone that could bring us all together.

In making the case for responsible rhetoric, this article examines a particular subset of high-profile cases, namely, cases involving the intersection of free exercise of religion and two specific individual liberties: LGBTQ rights and a woman’s right to choose. In recent such Supreme Court cases, the prevailing brief – and the subsequent court opinion – relied heavily on powerful personal narratives. Such narratives quickly are becoming the gold standard, especially given the nomination of Neil Gorsuch – an avid story teller – to the Supreme Court. Upcoming cases create the possibility of a classic show-down between narratives reflecting religious freedom and competing narratives respecting other individual liberties. Who wins – and how – can have a profound effect on the current divisiveness. Toward that end, this article ends with a proposed list of Ten Commandments for Responsible Rhetoric.

Keywords: Trickle-Down Bullying, Rhetoric

Suggested Citation

Johnson, Maureen, Trickle-Down Bullying and the Truly Great American Response: Can Responsible Rhetoric in Judicial Advocacy and Decision-Making Help Heal the Divisiveness of the Trump Presidency? (November 1, 2017). 25:4 American University Journal of Gender, Social Policy & the Law 445 (2017); Loyola Law School, Los Angeles Legal Studies Research Paper 2017-43. Available at SSRN: https://ssrn.com/abstract=3063639

Maureen Johnson (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

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