The Supreme Court and Opinion Content: The Use of the Federalist Papers

Article excerpt

Many scholars of the Supreme Court and many justices assert the importance of the Federalist Papers. They provide important evidence of original meaning and interpretation of the Constitution, and there is evidence that there is an increase in citations to the Federalist Papers in Supreme Court opinions. While some may view this increased citation use as a positive development because it demonstrates reliance on legal authority in judicial decisions, we provide evidence that in a period marked by dissensus and controversy, the use of the Federalist Papers represents externally and internally oriented strategic attempts by the justices to add legitimacy to constitutional interpretation, and to sway colleagues. We use a combination of descriptive and multivariate techniques to examine Federalist citations from 1953 to 1995 to demonstrate our interpretation.

"In deciding these cases, which I have found closer than anticipated, it is the Federalist that finally determines my position" (Justice David Souter, in his dissent in Printz v. United States, 1997, 521 U.S. 898 at 971).

In his dissent in Printz v. United States (1997), Justice David Souter states perhaps the ultimate expression of the value of legal authority as a guide to judicial decisionmaking. Souter, of course, is not the only justice on the Supreme Court to emphasize deference to the Federalist Papers. Over the past several decades many on the Supreme Court have increasingly cited the Federalist Papers in majority, concurring and dissenting opinions. The Supreme Court has cited the Federalist in many of the most controversial cases over the past several years, including the majority opinion and the dissent in the above referenced case, and in important cases such as Alden v. Maine (1999), Clinton v. Ciiy of New York (1998), and even Bush v. Gore (2000).

If enhanced use of the Federalist Papers means the Court is increasing its reliance on some standard of original authority in Constitutional interpretation, then this is a significant development. The Supreme Court justices have often been criticized for imposing their own personal policy preferences in constitutional interpretation, instead of being guided by "the text of the document and the intent of the framers" (Meese 1986: 32; see also Scalia 1997; Bork 1971). It would appear that if the Court or an individual justice uses the Federalist Papers to determine the outcome of a case, it is evidence that the Court and the justice are being guided by "the intent of the framers," and not personal policy preferences. The Federalist Papers then may act as a restraint on judicial opinions and case outcomes. In fact, two scholars recently asserted that "ideology ha[s] little bearing on how often a justice appeals to the [Federalist] essays" (Melton, Jr., and Miller 2001: 417)

In this manuscript we seek to build on previous literature that has systematically examined the process, but not the content, of Supreme Court opinions (see, e.g., Maltzman, Spriggs and Wahlbeck 2000 and corresponding analysis in Segal and Spaeth 2002: ch. 9). As Maltzman, Spriggs, and Wahlbeck ( 2000:154) note, the content of the opinions has to date been unexplored in any systematic, quantitative analysis. By systematically examining how the justices use originalist sources in their opinions, we provide some initial evidence that references to the sources in Supreme Court opinions are less the manifestation of originalist authority and more the expression of ideology and the use of strategy by the justices to provide originalist legitimacy. Thus, they are less a constraint than a rationale.

To accomplish this, we focus on what is often considered the most important of originalist sources, the Federalist Papers. We show that the Supreme Court has increased the use of the Federalist Papers in a period that also corresponds to a period in Supreme Court history marked by dissensus within and controversy without, as the Court moved from defending economic freedom to enlarging the freedoms of the Bill of Rights (see Walker, Epstein and Dixon 1988; Haynie 1992; O'Bnen 1993; Segal and Spaeth 2002). …