http://orcid.org/0000-0003-3175-9194
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Abstract
Why do justices use emotional appeals in their opinions? I explain this strategic decision using a theory based on conflict and audience. In non-salient cases, justices primarily speak to legal audiences. As cases become more salient, justices also cater to increasingly relevant non-legal audiences. This is especially true for dissenters, who seek to expand conflict and mobilize opposition through the use of emotional appeals when they find themselves in the losing coalition. My results confirm these expectations. They suggest that justices are engaged in a policy battle that does not end upon publication of Supreme Court opinions. Each coalition continues to fight for their position through the content of opinions they write, by playing to the strengths and biases of relevant audiences.
Notes
2 That policy matters to justices, however, does not mean that other factors are irrelevant to understanding judicial decisions. Many scholars have provided compelling evidence that factors such as self-representation, personality, power motivations, law, and personal reasons lead justices to behave in ways that cannot be explained by policy preferences alone (see Krewson and Owens Citation2017).
3 I thank an anonymous reviewer for pointing this out.
5 In his classic work, The Semi-Sovereign People: A Realist’s View of Democracy, Elmer E. Schattschneider uses conflict management theory to highlight the desirability of a governing system based on competitive parties. A key component of his argument is the concept of scope of conflict, or the extent to which individuals not directly in a conflict are nevertheless brought into it. When a competing perspective loses a debate or contest, it almost always stands to benefit by enlarging the scope of the conflict. Spectators are drawn to conflict, and alerting relevant groups to conflict mobilizes political forces against unfavorable outcomes. A smaller scope of conflict tends to lead to more biased outcomes than a larger one because the segment of society brought into the fight is less representative of the society as a whole. In Schattschneider’s view, competitive parties are more likely than interest groups or other entities to engage the largest swath of the American public, and thereby be a less-biased governing entity.
6 The primary argument made by Schattschneider is that “the outcome of every conflict is determined by the extent to which the audience becomes involved in it” (pg. 2, emphasis removed). The scope of conflict makes a difference in the determination of who wins, and “every change in the scope of conflict has a bias” (pg. 4).
7 We know that public attention influences the behavior of other political actors. For example, the presence of C-SPAN has led to significant increases in the lengths of congressional sessions and individual speeches. These speeches are largely nonlegislative (one-minute and special order speeches) and directed at the external audience (Frantzich Citation2015). We also have evidence that the arrival of C-SPAN and its associated public spotlight has led to decreased levels of collegiality and increased partisan rhetoric (Grundy Citation2000; Mixon and Upadhyaya Citation2003; Mixon, Gibson, and Upadhyaya Citation2003).
8 See Murphy (Citation1964, 147). In fact, some complain that dicta (arguments made in an opinion not necessary for deciding the case at hand) is quite pervasive (see Leval Citation2006). But this is the point. The opinion is a platform through which justices can influence broader debates. Justices use various platforms to influence the public. For example, they use public speeches to positively shape public perceptions of themselves and of the Court (Krewson Citation2019).
9 A list of ANEW words with scores above the threshold are listed in the Appendix A. It is important to note that these words are not simply correlated with previous measures of sensationalism largely based on negativity. In fact, according to LIWC, the words with a sensationalism score of 6.99 or higher connote an even mix of positive and negative emotions (29.9 and 34.3 percent of words, respectively).
10 In separate models, I found that the effect of Coalition Difference does not depend on opinion type.
11 The results are substantively similar if, instead, I calculate Coalition Distance by differencing the median ideology scores of the majority and minority coalitions.
12 I exclude partial dissents, concurrences and per curiam opinions from my analysis. The ambiguity of the purpose of these opinions make them theoretically inappropriate to include. Concurrences are ambiguous in that they can be “regular,” and support the majority opinion, or “special” and be similar to a dissenting opinion. Even regular concurrences vary in their purposes (Corley Citation2010). Per curiam opinions are unsigned opinions. It is unclear what strategic calculations lead justices to produce per curiam opinions, and how these calculations are related to attempts at influencing external audiences.
13 To estimate the effect of Supreme Court Term, I tested a linear version of Term as well as several non-linear forms. The Table uses Term in the form of a cubic polynomial, which form led to the best model fit. Including term as a linear variable does not change the results substantively. See Appendix A for a demonstration of the shape of this non-linear curve.