A Brief Assessment of Supreme Court Opinion Language, 1946-2013
57 Pages Posted: 8 Mar 2015 Last revised: 29 Mar 2017
Date Written: March 13, 2016
Supreme Court merits briefs are often the Justices’ and clerks’ primary resources for constructing opinions and they are designed for this purpose. The language, citations, arguments, and discussion contained within the briefs are oriented to provide the Court with a complete picture of each case. But how does the Court utilize this resource? The Court only occasionally cites briefs in its opinions, yet the effects of briefs far supersede this minimal but obvious relationship outcome. Another way to view the effect of briefs is through the trajectory of the Supreme Court’s language. Merits briefs provide the Court with access to case specific information and templates on which it can base opinions. This article examines the extent that the Court uses merits brief language in its opinions. Using linguistic analysis software, this article compares nearly 9,500 merits briefs between 1946 and 2013 with their respective opinions to examine the language that each opinion shares with merits briefs filed in the case. The article then locates the factors that lead the Court to incorporate varying amounts of language from the briefs in its majority opinions. The main findings are that the factors are relatively stable across time and that the most meaningful components are the receptivity or ideology of the justice, the influence of the brief-writer, and attributes specific to each case.
Keywords: judicial behavior, merits briefs, Supreme Court, empirical legal studies, litigation, multilevel model, public law, lawyers, law firms, linguistic analysis
JEL Classification: K40, C55
Suggested Citation: Suggested Citation