![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
Abstract
According to influential theories of judicial behavior, Supreme Court opinions are best seen not as genuine reflections of jurisprudentially based decision making but, rather, as insincere legitimating cloaks for decisions based on extralegal policy preferences or other political motives. Perhaps the best evidence of politically motivated opinion writing is provided by Phelps and Gates (1996; 1991), who demonstrate a disconnect between the interpretive theories publicly promoted and those actually applied in constitutional opinions written by Justices Brennan and Rehnquist. We demonstrate, by contrast, that Justices Scalia and Breyer differ markedly in the interpretive approaches used most often in their opinions and that the differences are consistent with their distinct jurisprudential philosophies. Furthermore, we find no evidence of a relationship between the ideological direction of opinions and the kinds of arguments presented therein. Thus, necessary (though in themselves insufficient) conditions for jurisprudentially based decision making are met in the case of these two justices.
Notes
Throughout this article, unless indicated otherwise, when we say that justices “use” or “employ” methods in their opinions, we mean that they invoke the kinds of arguments associated with particular methods. We do not mean that they are (necessarily) “using” or “employing” the methods to reach their decisions. Whether they are using/employing methods in that sense or, instead, using/employing those as rhetorical cover (or using/employing them in some other way) is a question, for reasons discussed elsewhere in the article, beyond the scope of the present study.
Brosseau v. Haugen, 543 U.S. 194 (2004). Justice O’Connor also signed.
Although this is an example of statutory interpretation, Scalia claims that his textualist method is the same for statutory and constitutional interpretation.
Epstein et al. (Citation2007) report that Justice Scalia, expected to represent a conservative vote when he was confirmed, moved further to the right after his first few years on the bench and has remained there since, to be surpassed only by Justice Thomas.
Indeed, Schultz and Smith (Citation1996, 80) conclude that “Scalia's uniqueness stems from his notable role as the Court's most consistent, forceful advocate of constitutional interpretation according to the original meaning intended by the framers.”
In Rasul v. Bush, Justice Stevens took another shot at Scalia's textual approach: “Justice Scalia appears to agree that neither the plain text of the statute nor his interpretation of that text provides a basis for treating American citizens differently from aliens. But resisting the practical consequences of his position, he suggests that he might nevertheless recognize an ‘atextual exception’ to his statutory rule for citizens held beyond the territorial jurisdiction of the federal district courts” (542 U.S. 466, 480, fn 10 [2004]).
He bemoans, moreover, that this is a fate the originalist, in particular, must bear: “I came down to breakfast the next morning, and my wife—she's a very conservative woman—she was scrambling eggs and humming ‘It's a Grand Old Flag.’ That's a true story. I don't need that! A living-Constitution judge never has to suffer that way” (cited in Talbot Citation2005). But see Rossum's contention that “[t]here is absolutely no textual or historical evidence to support the contention that the society that adopted the First Amendment understood it to cover such communicative activity as flag burning” (Rossum Citation2006: 32).
Since the justices do not differ significantly in their stances on stare decisis and doctrinalism more broadly—that is, neither justice rejects the legitimacy of doctrinal analysis and, yet, neither rejects the legitimacy of overturning precedents—we see no reason to code for their use of doctrinal analysis in their opinions.
By coding at the paragraph level, we gave ourselves the flexibility to use either paragraphs or opinions as the unit of analysis. As Footnote 11 reports, the data actually suggest starker differences between Scalia and Breyer when we use paragraphs rather than opinions as the unit of analysis. While this is illuminating, we rely primarily on opinions as our unit of analysis for two reasons. First, to avoid unnecessary interpretive confusion, we think it is best to consistently report results using the same unit of analysis. Second, we think it is theoretically more relevant to ask whether or not a justice chooses to use a method in any given opinion rather than whether or not a justice chooses to use a method in any given paragraph. After all, our study is ultimately motivated by the question of whether or not jurisprudential methods influence decisions. It makes sense, then, to focus on whether a justice chooses to invoke a method in an opinion/decision.
We look to agreement between the primary coder and at least one accuracy-check coder (instead of both accuracy-check coders) because we do not make the assumption that all coders are equally likely to make a correct or incorrect judgment. Instead, we operate from the assumption that the primary coder is more likely to make a correct judgment and less likely to make an incorrect one than are each of the individual secondary coders. This is because the coding scheme and rules were developed by the primary coder and the primary coder has more formal training and expertise in theories of constitutional interpretation. When we use the more onerous unanimous agreement standard, the overall agreement rate is 75 percent and Cohen's kappa is 0.694.
The findings reported in this paragraph are, if anything, more strongly supported if one looks at the percent of coded paragraphs instead of the percent of coded opinions. While Scalia was 2.2 times more likely than Breyer to invoke Tradition at least once in an opinion, he was actually 2.9 times more likely to do so in a paragraph. Similarly, Scalia was 3 times more likely than Breyer to employ at least one Textualism argument in an opinion, but 3.7 times more likely than Breyer to do so in a paragraph. On the other hand, whereas Breyer was 1.7 times more likely than Scalia to use at least one Purposive argument in an opinion, he was 2.1 times more likely to do so in a paragraph. Similarly, Breyer was 1.7 times more likely than Scalia to discuss the Consequences of alternative rulings in any given opinion, but also 1.9 more likely to discuss Consequences in any given paragraph.
By “ideological direction” of opinions, we mean the following. A “liberal opinion” is a dissenting opinion written in a case decided in a conservative direction—as coded in the U.S. Supreme Court Database (Spaeth, Benesh, Epstein, et al. 2013)—or concurring opinion written in a case decided in a liberal direction. Likewise, a “conservative opinion” is a dissenting opinion written in a case decided in a liberal direction or concurring opinion written in a case decided in a conservative direction.
Recall that these opinions are typically brief statements devoid of argumentation or ones in which the justice exclusively argues about the correct application of precedent (i.e., engages in doctrinal analysis).