Shaping the Law Together: Collectively Influencing Opinion Content

• In Event: Judicial Decisions and Legal Doctrine

Abstract

The influence parties and interest groups exercise over the Court's decisions is an essential avenue of inquiry. Written briefs provide a powerful vantage point to investigate such influence. Judges report that these briefs provide more relevant information than any other source (Corley2008, Michel1998). Law students take entire courses on how to craft these briefs to maximal effect (Corley2008, Neumann2001). Each year in recent times, interest groups and interested individuals have spent an estimated twenty-five to fifty million dollars producing roughly one thousand amicus briefs addressing the cases the Court has chosen to hear. The parties also spend millions of dollars writing briefs to plead their respective cases. Despite this rapid increase in the expenditure on resources to inform the Court, there are many remaining questions regarding the consequences of this information.

In this paper, we investigate how collective bodies of information shape opinions. Here, we focus on the combined text of all briefs filed on each side of a case and their relationship to the opinions produced by the justices. This paper builds on other work regarding the influence of the total information rallied for one side, but here we consider the effect of that body of text on opinion content. While it is important to consider the relationship between individual briefs and opinions, Justices and their clerks deal with groups of briefs when crafting the language that will define the judicial policies that the Court announces. Moreover, despite qualitative evidence that coordination is common among parties and amici, researchers generally treat briefs as independent of each other. Therefore, it is also essential to probe how the text for each side as a collective whole influences the more refined policies announced by the Court via the text of the opinions.

Our substantive contributions to understanding the consequences of collective information in the Supreme Court are made possible by key methodological contributions. We incorporate natural language processing tools to develop theoretically-motivated measures of informational content that can be deployed on a vast scale. These measures allow us to usefully describe the vast amount of information we have collected from both electronic and archival sources. We have amassed the text of more than thirty-two thousand party and amicus briefs filed between 1970 and 2015 as well as the text of the related court opinions. Collectively, these briefs and opinions contain more than 278 million words. Although other scholars have begun to apply such text analytic techniques (see, e.g., Collins 2015), answering the questions we are interested in has required us to move substantially beyond existing approaches. Finally, in addition to leveraging large amounts of textual data, we also complement our project with qualitative research from interviews with attorneys who have prepared and filed briefs before the Supreme Court as well as former Supreme Court clerks.

Authors

• Morgan L. W. Hazelton, Saint Louis University

• Rachael K. Hinkle, University at Buffalo