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What constitutes judicial influence and how should it be measured? Curious about the broader role that rhetoric plays in judicial influence over time, we undertook a rhetorical-computational analysis of the 282 majority opinions that Justice Scalia wrote during his 30 years on the Supreme Court. Our analysis is the first to examine the full majority opinion output of a Supreme Court justice using a unique “medium data” approach that combines rhetorical coding with quantitative analysis relying on Shepard’s Citations and LexisNexis headnotes. The resulting study casts doubt on the ability of judicial authors, including Justice Scalia, to control the extent of their influence on later courts.

One important finding from our study is that relying on only the vote counts of the Justices obscures the actual failures of unanimity that may generate long-lasting uncertainty. When there are concurring opinions in decisions whose vote counts are unanimous—opinions we reclassified as “deceptively unanimous”—later courts may continue to debate one or more issues over a long period of time, and that may result in a “long tail” of more frequent citations, not because of the majority opinion’s influence but because of the continuing conversation. If later courts diverge about the meaning or application of the rules established in the majority opinion, they may rely on a concurring opinion that gains or loses adherents over time. In these circumstances, both the original majority opinion and the concurring opinion will continue to be cited. And more frequent citations—to both the majority and the concurrence or concurrences—will extend long after the debate is settled as still-later cases recount the history of the dispute.

A second finding emerging from our analysis is that Justice Scalia’s rhetorical statements appeared
to be more or less attractive to later courts depending on the particular rhetorical context of the later judicial author. Although this finding may seem obvious, our analysis provided specific details. The federal courts of appeals, for example, were more likely to “cite” than to “follow” Justice Scalia’s precedential rules. Perhaps reflecting both their institutional role and their greater resources, the federal courts of appeals tended to more extensively discuss both the arguments made and the rules established in Justice Scalia’s majority opinions while the federal district courts and the state courts were somewhat more likely to simply follow the rules.

Finally, our analysis illuminates how difficult and complex it is to discern and describe the effects of rhetorical structures, argument frames, and word choices on judicial decisionmaking and opinion writing. For example, we suspect that Justice Scalia’s stated preferences for constructing particular kinds of rhetorical rule statements—bright lines, broad categories, strict limits—may in fact have resulted in more frequent citations, which some observers might translate into an inference of greater influence. Our analysis, however, indicates that these more frequent citations over time often were the result of Scalia rule statements that either created or contributed to lingering disputes.

Publication Citation

20 J. App. Prac. & Process 233 (2020).