Judicial Rhetoric, Meaning-Making, and the Institutionalization of Hate Crime Law

Abstract

In this article we examine how the concept of hate crime has been transformed in judicial discourse from a broad ambiguous category, which generated substantial controversy and opposition, to a focused determinate legal construct, which has been largely accepted as a legitimate legal practice. We track changes in judicial rhetoric across 38 appellate court opinions that consider the constitutionality of hate crime cases (1984-1999), and we propose a theoretical framework for analyzing the “settling” of legal meaning. A qualitative interpretive analysis demonstrates that the meaning of hate crime that emerges across the series of cases is much richer and nuanced than the collection of words contained in the statutes, and that the domain of hate crime has expanded across the series of cases to include a broader range of behaviors and mental precursors. Quantitative analysis shows that, over time, judges have developed a more economical and formulaic rhetoric for responding to petitioners' constitutional challenges to hate crime statutes and have converged around sets of arguments for negotiating challenges. We discuss the implications of these findings for traditional jurisprudential analyses, sociolegal research on judicial decisionmaking, and research on the social construction of deviance.