An empirical analysis of emotional language in legal briefs before the Supreme Court

Sarah Escalante is a Ph.D. student in the Department of Political Science at Michigan State University. Ryan C. Black is Associate Professor of Political Science at Michigan State University. Matthew Hall is Associate Professor of Political Science at the University of Notre Dame. Ryan J. Owens is Professor of Political Science at the University of Wisconsin. Eve M. Ringsmuth is Associate Professor of Political Science at Oklahoma State University.

Supreme Court opinions in recent years have employed controversial emotional language aimed to tug at the heart strings and to provoke ire. For example, one Court watcher recently called Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges “gorgeous, heartfelt, and a little mystifying;” another called Justice Antonin Scalia’s dissent in the case a “temper tantrum on paper.” One commenter called Scalia’s twenty-one-page dissent in King v. Burwell “one of the most scathing and linguistically creative dissents in recent memory.” Justice Sonia Sotomayor also got in on the action, and wrote what one observer called a “blistering” dissent in Glossip v. Gross. Perhaps it should be unsurprising that the Justices use such language. After all, they decide controversial issues that carry emotional weight for millions of people.

Yet those same Justices counsel lawyers to avoid such emotional language. In her confirmation hearing before the Senate Judiciary Committee, Sotomayor stated: “Judges can’t rely on what’s in their heart. . . . It’s not the heart that compels conclusions in cases, it’s the law.” Scalia, in his legal-writing book with Bryan Garner, advises attorneys not to “make an overt, passionate attempt to play upon the judicial heartstring” as “[i]t can have a nasty backlash.” Even Supreme Court Rule 24.6 – a rule the Justices themselves created – directs attorneys that a brief shall be “free of irrelevant, immaterial, or scandalous matter.”

There are strong reasons why an attorney should avoid highly charged emotional language. An attorney’s persuasive power resides in his or her perceived credibility in the eyes of the Justices. A primary way for an attorney to communicate this credibility is through the quality of the language employed in his or her legal briefs to the Court. The Justices pay close attention to language and they expect others to do so as well, and so they pay careful attention to the briefs that come before them. (To be sure, oral arguments also serve an important purpose, but it is the written brief that largely communicates and emphasizes attorneys’ points.)

The question we sought to examine was whether the language attorneys use in their briefs might correlate with case outcomes. While prior legal research has suggested how to write effective and readable briefs, there has been little empirical insight shed on whether these recommendations actually enhance an attorney’s credibility and win Justices’ votes. In a forthcoming study to be published in the Journal of Law and Courts, we provide some empirical findings.

We ask whether the inclusion of emotionally charged language in briefs disadvantages an attorney’s credibility and influence before the Court. To do so, we examine the initial merits briefs and individual Justice vote data from the 1,677 orally argued cases decided during the Court’s 1984-2007 Terms. We hypothesize that a Justice will be less likely to vote for a party whose brief employs more emotional language. We ground this belief in the fact that the Justices have been trained and socialized in the traditional rule of law, which emphasizes appeals to logic and legal authorities. By structuring an argument in measured, objective language that the legal community widely expects, a lawyer can most effectively enhance his or credibility and ability to persuade.

To test our expectations, we use the Linguistic Inquiry and Word Count program to analyze the content of the parties’ briefs and identify emotional words (such as “outrageous,” “apprehensive,” and “wonderful”). The data confirm our hypothesis. Parties employing overtly emotional language are less likely to capture the Justices’ votes. Our findings suggest that the language attorneys choose when crafting arguments plays an important role in determining a party’s ability to win the votes of the Justices and provides yet another mechanism by which attorneys are in a position to influence policies set by the Court.

More specifically, our model predicts a 0.61 probability that the petitioner wins a Justice’s vote when supported by a brief with a low level of emotional content. Holding all else constant and increasing the emotional content to a higher level reduces that probability to 0.56 – a relative change of about 9%. (Note: We use the 10^th– and 90^th-percentile values of emotional language for “low” and “high” hypotheticals, respectively.) The effect for the respondent is stronger. We estimate a 0.44 chance that the respondent wins a Justice’s vote with a brief containing relatively little emotional content. Exchanging that respondent’s brief with another containing higher emotional content reduces that probability to 0.37, which is a relative change of about 16%.

To put the magnitude of these values in perspective, the effect of petitioner-brief emotion is about the same as the effect of increasing the amount of previous experience the petitioner’s attorney has arguing cases before the Supreme Court. For emotive content in the respondent’s brief, the effect is almost triple the size of increasing the amount of oral argument experience the respondent’s attorney has.

The bottom line: attorneys looking to enhance their credibility and attract Justices’ votes are best served by listening to the advice offered up by the Court and avoiding overtly emotional language. Leave those words to the Justices.

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