Counting on Quality: The Effects of Merits Brief Quality on Supreme Court Opinion Content

Abstract

Many legal scholars, academics, and practitioners contend that the quality of merits briefs matters little in the United States Supreme Court. According to this logic by the time a case has reached the Supreme Court, the facts are already clear from the record and experts have meticulously prepared briefs particularly tailored to meet the Justices’ informational needs. This article sets forth a different thesis; specifically that merits brief quality matters even at the upper-echelon of the U.S. Courts. The results of this article show that merits brief quality affects both case outcomes and the amount of language Supreme Court’s opinions share with merits briefs even after controlling for Supreme Court litigation expertise. Due to the lack of existing empirical scholarship on the effects of brief quality, this article has two objectives. First, it develops a conceptualization of brief quality that can be reliably measured. Second, it tests whether the quality of briefs matters by looking both at how this affects case outcomes and the Justices and clerks’ likelihood of adopting language from merits briefs in the Court’s opinions. To do this, the article develops a new measure to gauge brief quality and to make comparisons between briefs. The dataset created for this article consists of 9,498 Supreme Court merits briefs from the 1946 through the 2013 terms.

Keywords: empirical legal studies, public law, Supreme Court, judicial behavior, briefs, legal writing, writing quality, attorneys