69 Pages Posted: 3 Feb 2016
Date Written: February 1, 2016
This article focuses on the brilliance -- or lack thereof -- of how each side framed the issues in certain hotly contested recent United States Supreme Court decisions. In other words, the article does not challenge the correctness of the Supreme Court decisions. Rather, the article focuses on the techniques used to control the lens by which an issue is analyzed, in particular, use of emotive appeal. As a practical matter, there often are two ways to legitimately frame an issue. In this circumstance -- when both sides could be correct -- why is it surprising that pathos might tip the scales?
Cognitive science suggests that powerful emotional appeals certainly may play a role in judicial decision making, perhaps even at a subconscious level. Aristotle realized this long ago and American legal realists have acknowledged this for at least a century. But even if it can be assumed that emotions never sway a judicial decision, there is a second very practical reason to include pathos in judicial filings. This article demonstrates that the “Hellos” -- the emotional hooks set forth in the introductory paragraphs of briefs -- often are showcased front-and-center in the resulting Supreme Court opinion. This is so even when these hooks have nothing at all to do with the merits of the case.
To prove this point, this article examines the “Hellos” in five recent hotly contested five-to-four Supreme Court decisions: Obergefell v. Hodges (same-sex marriage); Adoptive Couple v. Baby Girl (parental rights under the Indian Child Welfare Act); AT&T Mobility v. Concepcion (preemption/unconscionability of class-wide arbitration waivers); Burwell v. Hobby Lobby Stores, Inc. (religious freedom/abortion rights); and Glossip v. Gross (death penalty/drug protocol). The Obergefell discussion also includes analysis of the impacts of the “Hellos” in United States v. Windsor, 133 S.Ct. 2675 (2013) (DOMA) and Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (Prop. 8). This article then compares the “Hellos” to the Supreme Court decisions. The parallels are stunning.
This article ends with ten concrete tips for practitioners on how to craft powerful “Hellos.” The advice applies both at the trial court and appellate level. This part also explores the need to go beyond relying upon stock techniques and to instead dig deeper by taking the pulse of ever-changing social norms regarding what is fair and just. That is where the power of persuasion lies. Now, more than ever, practitioners must strive to win the reader over both in the heart and in the mind. It just might matter.
Suggested Citation: Suggested Citation
Johnson, Maureen, You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly-Contested U.S. Supreme Court Decisions (February 1, 2016). 49 Indiana Law Review 397 (2016); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-02. Available at SSRN: https://ssrn.com/abstract=2726332
By Tracy Turner
By Adam Feldman