The Dynamics of Legal Change: Attorneys & Legal Reasoning at the Supreme Court

• In Event: Writers on the Norm

Abstract

By explaining their legal reasoning in their opinions, Supreme Court justices change the law. Every time the justices mention a precedent in their opinions, they explain how that precedent should be treated in the future, and a precedent's value consequently expands or contracts as the justices work with it throughout time (Hansford and Spriggs 2006). Scholars oftentimes treat this process as justice-driven, but in reality, legal change is anything but. Attorneys have considerable control over the justices' interpretation of the law because they, at the justices' request, make the first pass at the answer to these difficult legal questions. Evidence suggests the justices pay attention to the briefs, accepting and rejecting the frames attorneys use (Wedeking 2010), borrowing the attorneys' language for their own analyses (Corley 2008), and even adopting new approaches at attorneys' suggestion (Schoenherr ND). While scholars know attorneys' decisions regarding framing and language matter, they understand little about how attorneys influence the justices' approaches or why the justices respond to attorneys' attempted influence. Using an original dataset of attorneys' citation patterns between the 1984 and 2018 Supreme Court terms, I employ time series analysis to study attorney citation patterns over time alongside the citations used in opinions.

Author

• Alison Higgins Merrill, Susquehanna University