Opinions: Fact or Political?

Look around you and listen. Where do you find people practicing rhetoric. Do people try to support these arguments with facts? Or do they use other means of cinvincing people to accept their arguments?

I've just left my Civil Liberties class on Monday night when I start blogging for Writing Theory. So, along the lines that presidents and members of Congress are good sources for rhetoric, I've been thinking about the way US Supreme Court Justices use rhetoric. Most people would think that the justices use fact to determine each case. When judges look to precedent, the details and outcome of cases decided before them, they do use fact. However, some justices pretend to judge cases based on fact but really base their opinions on politics.

A reoccuring tool my political science class and I have studied in the past few weeks is the creation of a test to determine if a particular case meets an established standard. For example, when talking about free speech, Justice Powell created the substantial interest test that determines if the issues at hand dealt with the first amendment, related to substantial government interest, and advanced these interests. Justice Rehnquist uses the test to reject a policy and then one year later uses the test to uphold a policy. The relevant question asks how rhetoric is being used. Can justices use fact to reject and uphold cases or do Supreme Court decisions mirror Crowley and Hawhee's explanation that opinions can no longer be held as fact?