55 Pages Posted: 2 Mar 2016 Last revised: 18 Mar 2017
Date Written: March 17, 2017
Although the Supreme Court is a singular institution within the American judiciary, it remains recognizably a court. Among the many institutional characteristics that mark the Court as a court, perhaps the most defining is that it exercises its law making function via justificatory opinions that accompany dispositions in individual cases. By conforming its lawmaking texts to the judicial genre, the Court distinguishes itself from other government actors, such as Congress and the President, that exercise government authority through other textual forms, such as statutes and executive orders. This Article presents the results of a quantitative analysis of Supreme Court opinions that measures the degree to which the semantic content of the Court’s opinions conforms to, or departs from, the judicial genre. With the opinions of the federal appellate courts as a baseline, we use the computational text analysis tool of topic modeling as the foundation of a method that estimates the degree of semantic distinctiveness of Supreme Court opinions. We also track changes in that distinctiveness over the second half of the twentieth century. We find that the Court has become measurably more distinctive over time; we further find that that the divergence of the Court’s opinions from the judicial genre is not due to the selection of an increasingly non-representative pool of cases for review. Rather, the Court is analyzing and writing about a similarly representative pool of cases, but in an increasingly idiosyncratic fashion. We accompany this quantitative analysis with a qualitative analysis of individual Supreme Court opinions that draws out the significance of this change. Our findings have methodological consequences for the empirical study of the Court and its practices, and also raise practical questions about the continued legitimacy of the institution at a particularly fraught time in its history.
Keywords: Supreme Court, topic models
Suggested Citation: Suggested Citation
Livermore, Michael A. and Riddell, Allen and Rockmore, Daniel, The Supreme Court and the Judicial Genre (March 17, 2017). Arizona Law Review, Forthcoming; Virginia Law and Economics Research Paper No. 2. Available at SSRN: https://ssrn.com/abstract=2740126