Richard Re

Reason and Rhetoric in Edwards v. Vannoy

Duke Journal of Constitutional Law & Public Policy
2022 Spring


Judicial reasoning and rhetoric should be mutually reinforcing, but they often end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared "moribund" may actually have survived. Second, Justice Gorsuch's ostensibly strict judgment-based approach arguably called for providing relief in Edwards. Third, majority coalitions at the Court have a counterintuitive incentive to overrule relatively insignificant precedents as often as possible. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, there is cause to celebrate the superficial and even fallacious reasoning often present in judicial decisions, including excellent ones. Other topics include Edwards's use of remedial equilibration, its procedural irregularities, and its defensible if unfamiliar approach to stare decisis.


Richard M. Re, Reason and Rhetoric in Edwards v. Vannoy, 17 Duke Journal of Constitutional Law & Public Policy, 63–98 (2022).

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