I get Worried with This...Constitutionality by Statistics: A Critical Analysis of Discourse, Framing, and Discursive Strategies to Navigate Uncertainties in the Argersinger Oral Arguments

Abstract

Framing and discursive strategies influence the direction of oral arguments and, ultimately, case outcomes, and these strategies benefitdominant interests and sideline marginalized voices. This paper critically evaluates the oral arguments in the 1972 Supreme Court, Argersinger v. Hamlin, decision holding (for the first time) that some misdemeanor defendants were entitled to counsel. The case was argued twice (1971and 1972) and decided under tremendous uncertainty about its effect, including (1) how many misdemeanor defendants would be affected by the ruling, (2) how lawyers might be recruited for representation, and(3) what kind of impact mandated representation might have on small, rural communities. Drawing on critical discourse analysis, this paper investigates how lexicality and framing shifted questions and arguments that constructed social realities perpetuating and reproducing dominant interests while obscuring and backgrounding non-dominant interests on the scope of the right to counsel. The analysis shows that common legal framing strategies amplified the voices and concerns of the judges, lawyers, and systemic interests while undermining defendants’ interests, particularly in resolving factual uncertainties. Guidance in structuring contemporary arguments to avoid these inequities that result in the unintended marginalizing of constitutional rights is discussed.