When writing for the minority, justices get defensive
Rank of Justices: Most defensive in defeat relative to when in majority.*
- Justice Kennedy
- Justice Scalia
- Justice Thomas
- Justice Souter
- Justice Alito
- Justice Roberts
- Justice Breyer
- Justice Stevens
- Justice Ginsburg
*From the 2006-2009 Supreme Court
Supreme Court Justices don’t like being on the losing end of landmark decisions, several of which have been handed down this summer.
In fact, the justices don’t like losing, period. As it turns out, even Justices who vote in the minority of an 8-1 decision tend to go down swinging.
A new analysis coauthored by a BYU statistician provides evidence that when Supreme Court Justices are writing a minority (losing) opinion, they subconsciously adopt a more assertive writing style to try to demonstrate how their argument is superior to their counterparts.
“When you’re writing as a loser, you’re in a defensive crouch,” said BYU statistics professor William Christensen. “When it’s pretty clear to the rest of the Court that your argument is not so clear, you’re increasingly likely to use terms such as ‘clearly’ to defend your case.”
Christensen and lead author Lance Long of Stetson University Law found Supreme Court justices in the minority use significantly more intensifiers in their opinions, such as: “very,” “obviously,” “clearly,” “patently,” “absolutely,” “really,” “undoubtedly,” “certainly,” “totally” and “wholly.”
The researchers had previously found this trend at the state and federal appellate level and now they’ve shown it to be the case at the U.S. Supreme Court level.
Their study, appearing in the recent issue of the Oregon Law Review, shows every Supreme Court justice does it to some degree. Justice Antonin Scalia and Chief Justice John Roberts use intensifiers at the highest rate overall, but Justice Anthony Kennedy shows the greatest relative increase when writing a dissenting opinion instead of a majority opinion.
In an analysis of the 526 Supreme Court opinions written between 2006 and 2009, the researchers found Justice Kennedy’s use of intensifiers nearly triples when he writes a minority opinion.
“It’s interesting that Justice Kennedy, often the ‘swing vote’ on the Court, appears to be the most affected by argumentative threat,” Christensen said. “When he is writing for the majority, he’s cool as a cucumber. But when he writes for the dissent, which is rare, he appears to feel the most threatened.”
On the other end of the scale, Justice Ruth Bader Ginsburg is the most level, only nominally increasingly her use of intensifiers when going from majority writer to minority writer.
Ironically, two of the most defensive justices overall – Justice Scalia and Chief Justice John Roberts – are also the two justices that harp most on lawyers for doing the same thing in legal briefs.
Addressing students and faculty at Northwestern University School of Law, Chief Justice Roberts said:
“We get hundreds and hundreds of briefs and they’re all the same . . . . Somebody says, ‘My client clearly deserves to win, the cases clearly do this, the language clearly reads,’ blah blah blah. And you pick up the other side and, lo and behold, they think they clearly deserve to win.”
Justice Scalia’s advice to legal writers on defensive writing is even more ironic:
“You’ll harm your credibility – you’ll be written off as a blowhard – if you characterize the case as a lead-pipe cinch with nothing to be said for the other side. Even if you think that to be true, and even if you’re right, keep it to yourself."
Long said it's interesting that the "conservative" justices were more susceptible to argumentative threat than the "liberal" justices.
That said, Christensen believes the study says less about the justices themselves than it does about human nature.
“This research is identifying very subtle differences, but they are real, and that’s the power of statistics,” he said. “None of this is a moral judgment on any of these people. Rather, it’s a discovery about human nature generally.”