Vol. 33 No. 06 (August 2023) pp. 79-82
PERSUADING THE SUPREME COURT: THE SIGNIFICANCE OF BRIEFS IN JUDICIAL DECISION-MAKING, by Morgan L.W. Hazelton and Rachael K. Hinkle. University Press of Kansas, 2022. pp. 296. Paperback $32.95. ISBN: 9780700633630. Ebook $24.99. ISBN: 9780700633647.
Reviewed by Jessica A. Schoenherr. University of South Carolina. Email: js122@mailbox.sc.edu.
Given their genuine love for the language of the law and their own high standards for writing in that language, Supreme Court justices are understandably frustrated by legal documents that lack readability and flair. In interviews with news outlets, law school deans, and legal scribes, the justices consistently offer attorneys the same advice: well-reasoned, well-written, and short briefs win cases and poorly written briefs do not (see, e.g., Garner and Roberts, 2010). The justices pay attention to the arguments that attorneys make (Johnson, Wahlbeck, and Spriggs, 2006), and they hate wasting their time parsing poorly written arguments (Scalia and Garner, 2008). Consequently, good arguers become repeat players who dominate the Court’s docket (Biskupic, Roberts, and Shiffman, 2014; McGuire, 1993), and the attorneys who fail to present effective arguments lose credibility and never show up again.
But what are repeat players putting in their briefs? What makes their arguments better? And do those better arguments increase the probability of winning in a world where ideology explains so much of judicial behavior? These are the questions Morgan Hazelton and Rachael Hinkle answer in their fantastic new book, Persuading the Supreme Court: The Significance of Briefs in Judicial Decision-Making. Over the course of six chapters, the authors show that experienced attorneys use briefs to present information the justices need in a manner that limits cognitive burden and thus makes it easier for the justices to decide the case. Building on past work (see Hazelton, Hinkle, and Spriggs, 2019), Hazelton and Hinkle say that good arguments emphasize points that appear across several briefs to ensure those points land. Experienced and well-resourced attorneys write longer briefs but those briefs tend to be easier to read. They talk about policy implications and skillfully coordinate their arguments across merits and amicus briefs. And, importantly, this attention to detail matters, as the justices are more likely to side with these longer, easy-to-read, and policy-focused arguments and incorporate them into their opinions.
The centerpiece of this book is the extensive and varied data collection, which the authors unveil in Chapter 1. Hazelton and Hinkle have data on every merits and amicus brief submitted to the Court in orally-argued cases from 1984 to 2015, which means they examine more than 26,000 briefs. They analyze the text of these briefs using several different measures, including different word and citation counts, the amount of policy-centered content in each brief, and the overlap of arguments across briefs, which the authors measure using cosine similarity (see also Hinkle 2015). Given their long period of analysis, Hazelton and Hinkle show over-time shifts, like the fact that briefs universally got more difficult to read when the Roberts Court began in 2005 (p. 33), as well as overall trends. The authors also collected data on every attorney whose name appeared on a brief during this period, including each filer’s past briefing experience and their service as clerks or members of the Office of the Solicitor General. As though this wealth of empirical data were not enough, Hazelton and Hinkle conducted interviews with attorneys and former clerks, and this trove of content bolsters their hypotheses and findings.
In Chapter 2, Hazelton and Hinkle examine briefs produced by repeat players and well-resourced litigants. Acknowledging that experienced and well-financed attorneys are more likely to win before the justices (Galanter, 1974; Sheehan, Mishler, and Songer, 1992), the authors look to see if attorneys backed by credentials and money approach briefs differently than other attorneys. It turns out they do. Experienced and well-resourced attorneys write longer briefs, but they are easier to read. Experienced attorneys are also more likely to target the median justice and they include more of the policy-centered language the justices want to see in their briefs. In short, the results presented in Chapter 2 suggest experienced attorneys know what the justices want to see in a brief and how to provide it.
The results provided in Chapter 3 suggest that experienced attorneys are better at coordinating their arguments and ensuring key points get emphasized in briefs. This chapter is, arguably, the most important in the book, because it gets at the heart of Hazelton and Hinkle’s argument: good briefs provide the justices with the information they actually want by using repetition, policy-focused language, and readable arguments. Here, the authors show that experienced attorneys are better at coordinating arguments; their briefs are more likely to contain arguments that are similar to those put forward by the other parties that filed in the case. The findings in this chapter reveal that experienced attorneys are better at making sure the most important pieces of an argument get repeated, so the justices understand these arguments are both relevant and the consensus answer to the problem at hand.
Having established that experienced and well-resourced attorneys approach briefs differently than their less-experienced and less-funded counterparts, Hazelton and Hinkle next turn to the big question: does it matter? In Chapter 4, the authors look at the information provided by anyone supporting the petitioner (both the party and the amici) and compare that to the information provided by anyone supporting the respondent. To do this, the authors turn their analytical angle to the collective, looking at all the information provided to the justices in favor of one side of an argument or the other. The results suggest the justices, both individually and as a Court, respond more positively to the side whose total presentation is more thorough. Experienced attorneys are, again, more likely to secure a vote than inexperienced attorneys, at least in part because they can make the better (read: longer and more complete) argument. This chapter suggests the justices care about the content of the many briefs submitted to the Court, not just which side has more support via amicus briefs.
Chapter 5 moves beyond the win/loss column and looks at the influence that briefs have on the final opinion. While work by Corley (2008) established the justices regularly borrow from briefs when writing their opinions, particularly when an experienced attorney or the Solicitor General wrote that brief, Hazelton and Hinkle offer a nuanced view. They suggest that the justices’ borrowing is more selective and centers on the specific information that gets repeated across briefs. They find that the more similar a brief is to the arguments presented by other interested parties, the more likely the justices are to use that information in their opinion. Or, put differently, the more a point gets hammered home across multiple briefs, the more likely the justices are to incorporate that information into their opinion. This, the authors point out, is the true lasting influence of a brief: it can shape the law for decades to come by influencing the justices’ opinions.
The authors end their empirical analysis with a wide view. They look at how similar opinions are to all the information the justices receive. In Chapter 6, Hazelton and Hinkle show the justices’ opinions are more similar to sides that provide more information and policy focused language. Importantly, their opinions are also more likely to reflect parties that share language than they are to reflect parties whose collective arguments contain numerous and novel arguments. Hazelton and Hinkle contend this means the justices genuinely do prefer arguments that mirror each other, or at least address similar points, which again lends credit to their overarching theory that good briefs provide useful information, but not too much of it.
Persuading the Supreme Court is a book that is well worth a read for anyone trying to understand how attorneys win over the justices with the use of their words. It is a worthy heir to both Collins’s (2008) book on amicus briefs and Johnson, Wahlbeck, and Spriggs’s (2006) study of argument quality because it too advances scholars’ understanding of how attorneys and other interested parties can influence outcomes at the Supreme Court. Hazelton and Hinkle wrote a book that is easy to read, comprehend, and tie together, as they use the same case (Florida v. Harris [2013]) to structure each chapter, which gives readers more information about the case at each turn (who knew reading about police dogs could be so much fun?). Finally, this is a book that provides a beautifully detailed pivot for further research on briefs (and arguments broadly). I promise you will have several new research ideas of your own by the time you finish reading this book, and you will be grateful to Hazelton and Hinkle for giving them to you.
REFERENCES:
Biskupic, Joan, Janet Roberts, and John Shiffman. 2014. “The Echo Chamber: A Small Group of Lawyers and its Outsized Influence at the U.S. Supreme Court.” Reuters. URL: https://www.reuters.com/investigates/special-report/scotus/
Collins, Paul M. 2008. Friends of the Court: Interest Groups and Judicial Decision Making. New York: Oxford University Press.
Corley, Pamela C. 2008. “The Supreme Court and Opinion Content: The Influence of Parties’ Briefs.” Political Research Quarterly 61(3):468–478.
Galanter, Marc. 1974. “Why the Haves Come out Ahead: Speculations on the Limits of Legal Change.” Law and Society Review 9:95–160.
Garner, Bryan A. and John G. Roberts. 2010. “Interviews with United States Supreme Court Justices: John G. Roberts Jr.” The Scribes Journal of Legal Writing 13:5–40.
Hazelton, Morgan L.W., Rachel K. Hinkle and James F. Spriggs. 2019. “The Influence of Unique Information in Briefs on Supreme Court Decision-Making.” Justice System Journal 40(2):126–157.
Hinkle, Rachael K. 2015. “Legal Constraint in the U.S. Courts of Appeals.” Journal of Politics 77(3):721–735.
Johnson, Timothy R., Paul J. Wahlbeck and James F. Spriggs. 2006. “The Influence of Oral Argument Before the U.S. Supreme Court.” American Political Science Review 100(1):99– 113.
McGuire, Kevin T. 1993. “Lawyers and the U.S. Supreme Court: The Washington Community and Legal Elites.” American Journal of Political Science 37(2):365–390.
Scalia, Anontin and Brian A. Garner. 2008. Making Your Case: The Art of Persuading Judges. Saint Paul, Minnesota: Thomas/West.
Sheehan, Reginald S., William Mishler and Donald R. Songer. 1992. “Ideology, Status, and the Differential Success of Direct Parties Before the Supreme Court.” American Political Science Review 86(2):464–471.
CASES:
Florida v. Harris, 568 U.S. 237 (2013).
© Copyright 2023 by author, Jessica Schoenherr.
