Supreme Court judges are more likely to borrow language from interest group pleadings if they go unnoticed.
Over the past few decades, the Supreme Court has increasingly been seen as both a political and a legal institution, with the partisan ideologies of the judges influencing its decisions. In new research, Kayla Canelo examines how judges refer in their majority opinions to pleadings from interest groups of official colleagues or amicus curiae and cite them. She notes that judges are more likely to adopt the language of pleadings from interest groups ideologically closer to their own interests, and that they are likely to go unnoticed, but are less likely to quote those pleadings directly, possibly to protect their own legitimacy in the eyes of the public.
The Supreme Court is both a legal and a political institution. While there are many examples of this dual role, a prominent example in political discourse today concerns Judge Stephen Breyer. Breyer recently wrote a book claiming that the Supreme Court is above politics and must remain so in order to protect the legitimacy (or image) of the institution. However, recent Supreme Court nominations have been very controversial, with some urging Breyer to retire so President Biden can replace him with another Liberal, highlighting the ideological component of the Supreme Court’s decision-making.
One way to gauge how Supreme Court justices weigh political goals and legitimacy concerns is to examine how they interact with some of the world’s most political entities – interest groups. A variety of organized stakeholders drop letters to the court (amicus curiae) to provide the judges with information and encourage them to vote in a certain way on a case. The number of these filings has increased over time, and the judges have used these briefs to formulate their majority opinions.
In particular, the judges sometimes explicitly refer to these groups in their majority opinions, while sometimes borrowing the exact language from these pleadings, often without naming them. These two types of usage differ in that one (quotation) is visible to the reader, while the other (loan language) is imperceptible. As such, borrowing language could allow judges to participate in ideological behavior by relying on information from ideologically similar groups. However, when the judges are concerned with legitimacy, they may be more cautious of the groups they officially cite.
Fortunately, scientists have collected data on all of the amicus curiae filings from 1953 to 2013 and created the ideological locations (known as ideal point estimates) for 600 organized interests in the same political space as the Supreme Court justices. In this way, researchers can compare how the ideological preferences of interests compare with those of judges. In my research, I assess whether judges borrow more language from ideologically similar interests (to advance their political goals) and whether they are less likely to cite ideologically open interests (to protect their own legitimacy).
Do judges rely more on pleadings filed by ideologically similar interests?
First I looked at the borrowed language. I collected letters from friends of the court filed by organized interests in 300 randomly selected cases from the terms of the Supreme Court from 1988 to 2008. To gauge how much language the majority opinion took over from these letters, I ran them through plagiarism detection software called WCopyfind. This resulted in the percentage of majority opinion that results from the language used in each individual briefing.
Figure 1 shows the ideological locations of the pleadings (i.e. the locations of the groups or interests that submitted the pleadings). This is a typical left-right scale, where negative values represent what is conventionally viewed as liberal and positive values represent what is conventionally viewed as conservative. The solid line represents all of the briefs in the data set, while the dashed line represents the briefs where 5 percent or more of the language of the majority opinion was derived from that brief. As can be seen in the figure, the judges borrow from a variety of interests ranging from approximately -1.8 to 1.
Figure 1 – Ideology of interests at briefings (borrowed language data)
I used multivariate analysis to determine whether the judges borrowed more language from pleadings submitted by interests ideologically similar to their own preferences. I think the more ideological the constitutional justice is aligned with the interests of the brief, the more language the judiciary will borrow their opinion.
“Equal justice under the law” (CC BY-NC-SA 2.0) by afagen
Next, I assessed whether the judges are careful with the types of interests they raise in order to maintain their legitimacy. While many pleadings are filed by counterparts, very few are cited. So I had to purposely select cases where a brief was quoted in majority opinion and use a statistical package called ReLogit that took into account possible bias. This data collection ultimately resulted in 3,297 pleadings in over 500 cases. I have ideological data for 1,935 of these briefs that were used in the analysis.
Figure 2 depicts the ideological locations of the pleadings (ie the locations of interests that submitted the pleadings). The solid line represents all of the briefs in the citation record. The dashed line represents the ideological locations of the interests whose briefs were quoted in the majority opinion. What differs from the first number is that while the judges do borrow language from pleadings filed by more ideological interests (especially on the left-hand side from -1 to about -1.8), this is not repeated, when it comes to quotes. Rather, the judges name interests that are in the range of -1 to 1, which is where the majority of the pleadings are located.
Figure 2 – Ideology of interests in pleadings (quotation data)
I used multivariate analysis to determine if there was a connection between ideology and the choice to quote. I did not find that the more ideological the judges avoid quoting pleadings. However, I’ve found that the judges are less likely to quote the most ideological groups (the ones at the end of Figure 2). This suggests that there might be a legitimacy component at play in deciding to quote amicus briefings. Interestingly, I did not find the judges citing pleadings submitted by ideologically similar interests, contrary to the results of the analysis of the borrowed language.
Judges borrow more language from pleadings submitted by ideologically similar groups, but quotations are more complicated
It does not appear that the judges are making ideological use of amicus pleadings when it is obvious, as I have not found that the judges are more likely to cite pleadings filed by ideologically similar interests. But they behave in such behavior when it is not visible, and borrow more language from pleadings submitted by ideologically similar interests. Also, I don’t find that judges avoid citing pleadings submitted by ideological groups, but they are less likely to cite pleadings submitted by the least apologetic ideological groups. Taken together, these results suggest that judges display ideological behavior when it is likely to go unnoticed, but also have some level of concern about how their opinions and / or the institution are perceived by the public.
These findings open the door to future research directions. The researchers should next analyze the borrowed text to determine what kind of information the judges gleaned from the pleadings of friends of the court. Given the increasingly biased nature of the Court, I am currently working on examining newer court terms to assess whether ideology plays a more important role in deciding to quote in this context and whether authors of dissenting quotes are responding to the majority.
Please read our comment policy before leaving a comment.
Note: This article represents the views of the author and not the position of USAPP – American Politics and Policy or the London School of Economics.
Shortened url for this post: https://bit.ly/2Zk5IoJ
About the author
Kayla S. Canelo – University of Texas at Arlington
Kayla S. Canelo is an Assistant Professor of Political Science at the University of Texas at Arlington. She is studying American Politics with a focus on judicial policy and public opinion. Her research has been published in the Journal of Politics, State Politics and Policy Quarterly, Presidential Studies Quarterly, and American Politics Research.