Academic journal article Law & Society Review

The Use of Rhetorical Sources by the U.S. Supreme Court

Academic journal article Law & Society Review

The Use of Rhetorical Sources by the U.S. Supreme Court

Article excerpt

This study considers whether U.S. Supreme Court justices use opinion content strategically, to enhance the legitimacy of case outcomes. This hypothesis is tested by examining the Court's use of rhetorical sources, which are references to esteemed figures and texts that corroborate the justices' views. The data are consistent with the position that justices use rhetorical sources strategically, citing them when the legitimacy of their actions is lowest, such as when they are overturning precedent, invalidating state or federal law, or issuing directives from a divided bench. The study also tests several other explanations for the use of these sources, such as legal considerations, the justices' ideologies, and efficiency concerns.

Though sometimes overlooked, the language of court opinions can be as important as the disposition of cases, albeit for different reasons. The outcome of a case has the most direct impact on the parties and issues involved. It announces who wins and who loses, which laws and policies survive and which do not. But the language of opinions is often where the real work of courts is done. Judicial opinions can confine holdings to particular sets of claimants or announce more general principles. They can firmly endorse rules or they can equivocate, inviting relitigation. And opinions can persuade, building up coalitions of judges for majorities and earning the support of interpreting and implementing groups.

This study investigates some of the language choices that U.S. Supreme Court justices make. Specifically, it focuses on what might be termed rhetorical sources: references to prominent authors and texts that are nonbinding on case outcomes. These sources include a wide range of materials, from interpretive authorities such as the Federalist Papers and Blackstone's Commentaries on the Laws of England to the writings of esteemed figures such as Thomas Jefferson and John Locke. Because their inclusion is optional, rhetorical sources can serve as a gateway to understanding how Supreme Court justices assemble their opinions. Why does one justice cite the Federalist Papers when another does not? Is it simply a matter of personal preference, or do legal considerations also matter? Are justices motivated by efficiency concerns, or by more complex interests?

One possibility is that justices use rhetorical sources strategically, employing them most frequently when the legitimacy of their holdings is in doubt, such as when they are overturning precedents or invalidating statutes. When deciding hard cases, justices must know that their opinions are likely to be scrutinized by individuals both on and off the bench. Even if such scrutiny does not affect the outcome a justice chooses (Segal & Spaeth 1993), it may still affect the language used to defend it. Making an opinion as persuasive as possible can serve any number of useful functions. It can hold together a majority coalition or encourage a wavering justice to sign on. It can facilitate compliance by winning over interpreting and implementing groups. Or it can enhance the reputation of an opinion and its author in the legal community.

For example, when the Court in Furman v. Georgia (408 U.S. 238 [1972]) declared that states could not impose the death penalty because, as applied, it constituted "cruel and unusual punishment," the justices did not simply present their views as raw expressions of judicial will. The separate opinions justify their expressed policy preferences by invoking such materials as Blackstone's Commentaries, John Stuart Mill's "On Liberty," the Magna Carta, and the writings of Thomas Jefferson, Joseph Story, and Oliver Wendell Holmes, among other legal authorities. Buckley v. Valeo (424 U.S. 1 [1976]), concerning the constitutionality of campaign finance legislation, contains references to Charles de Montesquieu, while Justice John Paul Stevens's majority opinion in U.S. Term Limits v. Thornlon (514 U. …

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