Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of opinions and, consequently, have the ability to influence the law. Utilizing plagiarism software, the author compares the parties' briefs with the majority opinion of the Court. The results indicate that there is a connection between the language of the parties' briefs and the language of the opinions, which means that parties have the potential to influence the law.
Keywords: Supreme Court; opinion content; parties' briefs
Do parties' briefs influence the content of Supreme Court opinions? There are reasons to believe that they do. A brief is submitted with the goal of persuading the Court that the law should be interpreted in that party's favor. A brief not only persuades but also may assist the Court in writing a solid opinion. Attorneys are trained to write persuasively and are told that the briefs are used by judges "to decide how to vote" and that judges will use the briefs "for the detail needed to justify and explain the decision" (Neumann 2001, 385). Briefs emphasize, among other things, precedents, analogical reasoning, and canons of statutory construction. They are read by the justices and/or the law clerks, who assess the arguments made (Rehnquist 2001). Some of the justices require the law clerks to prepare "bench memos," which are digests of the arguments contained in the briefs along with the law clerk's analysis of those arguments (Rehnquist 2001).
Even though the Supreme Court provides for oral argument, a brief may be the best means for influencing the outcome and the content of the opinion because justices may read the briefs and make up their minds about who should win before they hear oral arguments. Judge Paul R. Michel of the U.S. Court of Appeals for the Federal Circuit wrote,
In about 80 percent of all appeals, I reach a firm inclination just from reading the briefs. In 80 percent of those appeals, oral argument fails to "flip" me. And whatever view I had before argument, in 80 percent of all appeals, my conference vote the day of the oral argument remains unchanged as the opinion is prepared. (Michel 1998, 21)
According to Judge Michel (1998,21), "The best persuader ... is your brief."
Recent evidence shows that justices are influenced by the quality and persuasiveness of legal argumentation. Johnson, Wahlbeck, and Spriggs (2006) found that oral arguments influence Supreme Court justices and specifically that justices are more likely to vote for the litigant whose attorney provides higher-quality legal argumentation even after controlling for ideology. In another study, Spriggs and Wahlbeck (1997) demonstrated a connection between the type of information contained in an amicus brief and the Court's majority opinions. They found that the solicitor general, as the ultimate repeat player and arguably the most qualified, is more likely than other amici to have his arguments used in the Court's majority opinions. However, one source of influence on the Supreme Court that has not been examined is the brief on the merits submitted by the parties.
To what extent do the majority opinions use the arguments and reasoning provided by the briefs? If the justices are motivated to reach legally sound decisions, they are likely to be influenced by the persuasiveness of legal argumentation (Lindquist and Klein 2006). Thus, the arguments presented to the Court in the briefs are part of a legal model of decision making, one in which a quality argument can persuade the justices to interpret precedent in a particular way and to develop new legal rules, both of which affect decision making in future cases (see Wahlbeck 1997). If the majority opinion adopts the arguments articulated by the parties, those arguments will be called upon again for use in future cases (see Kassop 1993). …