Are The Supreme Court Justices’ Opinions Emotionally Charged And Does It Matter?

A Sunday morning article in the New York Times begins,

“Last February, Chief Justice John G. Roberts Jr. sent his eight Supreme Court colleagues a confidential memo that radiated frustration and certainty [referring to the D.C. Circuit’s decision in the Donald Trump immunity case].”

The article continues describing Roberts’ Feb. 22^nd memo to the justices,

“He wrote not only that the Supreme Court should take the case – which would stall the trial – but also how the justices should decide it.”

This approach seems a far cry from the role of the judge the Chief described in his confirmation hearings, one where he would,

“…be open to the considered views of my colleagues on the bench…I will remember that it’s my job to call balls and strikes, and not to pitch and catch.”

Later in the Times article, describing the Fischer January 6^th case, the authors relate,

“The chief justice assigned the opinion to Justice Alito, according to several court insiders.  But months later, Chief Justice Roberts updated the Court: Justice Alito was no longer the author.”

Then the authors describe,

“Four days earlier, The Times had reported on the upside-down flag that flew at the Alito’s home soon after the Jan. 6 insurrection at the capital.”

While details like the ones in the Timesarticle very seldom become public knowledge, they point to something both obvious and perhaps non-obvious: the justices do not decide opinions in a vacuum of case law. No, the justices bring feelings, preconceptions, and ideals (at very least) into their decisions. This isn’t the first time such realities were made public by the justices’ deeds or actions.

Several years before Roberts’ nomination, in 2001, then Second Circuit Judge Sonia Sotomayor spoke at U.C. Berkeley saying,

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Later, during her confirmation hearings in 2009, Sotomayor was forced to backtrack as she stated,

“It is clear from the attention that my words have gotten and the manner in which it was understood by some that my words failed…They didn’t work.”

Thinking through Roberts statements and actions as described in the Timesarticle and Sotomayor’s point about individual experience in judging harkens back to legal principles articulated by Herbert Wechsler in his seminal piece from 1959 Towards Neutral Principles of Constitutional Law.  Wechsler described,

“I put it to you that the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result is achieved.  To be sure, the courts decide, or should decide, only the case they have before them. But must they not decide on grounds of adequate neutrality and generality, tested not only by the instant application but by others that the principles imply? Is it not the very essence of judicial method to insist upon attending to such other cases, preferably those involving an opposing interest, in evaluating any principles avowed.”

Following Wechsler’s thought, the judge is fungible, the outcome should be found by any judge doing proper diligence in situating each case in the relevant legal precedent and constitutional or statutory context.  Although it has long since become generally accepted that law is not decided in such a vacuum, the various mechanisms that fuel judges’ differing interpretations of similar legal matters have only become clearer over time.

In other works such as Terry Maroney’s Judges and their Emotions, the idea of a neutral judge is put under a microscope when Maroney writes,

“Emotion traditionally has been counted among the primary sources of fallibility and bias.  The task of the legal system, under this view, is to systematically reduce the opportunities for judicial emotion to insert itself; the task of the good judge is to prevent emotion from exerting any influence wherever such opportunities remain.”

While this might be an ideal picture of judging, it seems that in reality, judges, not shockingly, do respond to emotional stimuli. Donald, Rachlinski, and Wistrich have performed rigorous experiments of judges (really some of the only near true experiments involving judges) and their findings are telling. They wrote,

“…in our study using the implicit association test, we found that 80 percent of white judges more strongly associated Black faces with negative words, and white faces with positive words.”  Later on, they mention, “We also found that judges sentenced a female criminal defendant less harshly than an identical male defendant…the result is still unequal treatment of identically situated defendants.”

One of the interesting findings of the authors is that

“…judges have a difficult time accepting their weaknesses, especially when it comes to implicit bias…When it comes [to] avoiding racial bias in decision-making, 97 percent rate themselves as better than the median judge.”

Even though the present article is only a cursory examination of emotions in judging, it does dictate a potential ideal and a reality. While the ideal might be of a judge that applies the law without regard to emotional stimuli, based on the text, possibly on a case’s implications, but devoid of personal feelings and emotions, the reality is much more complex.

This article sets out to probe the reality, not through external statements alone, but through the justices’ judicial writings.  At the bottom of it all, this is not necessarily a critique of the application of emotion in judging, but merely to provide a sense of the extent of emotion in Supreme Court decisions, and of the possible correlates of this relationship. The article proceeds by examining the majority opinions and dissents from the 2023 Supreme Court Term to see the extent of the emotional language in the justices’ opinions, when it arises, and whether there are disparities between the justices. The normative stakes of this discussion were highlighted above for the sake of debate but without regard to the appropriate approach. This article presents a quantitative analysis to hopefully infuse more real-world substance from the Supreme Court into this discussion.

Measures

In the period between 2010 and 2020, several political scientists authored studies examining the role of emotions in judging. The main hypothesis was that judges use emotionally charged language when they implicitly or explicitly disagree with a party’s argument or position. Thus, the articles proceed that judges (especially Supreme Court Justices) are likely to vote against the party when they use more emotional language.  In one of the first studies, Black, Treul, and Johnson used the Dictionary of Affect in Language to measure oral argument speech. They posited, “Our results suggest that when the justices focus more unpleasant language toward one attorney, the side he represents is more likely to lose.”

In a 2016 study, Bryan and Ringsmuth used the Linguistic Inquiry and Word Count (LIWC) dictionary to measure emotional language in dissents and concluded, “…our finding that negative dissents increase newspaper coverage of a case reinforces the conventional wisdom that conflict enhances the newsworthiness of an event…[t]he results show that individual justices are in a position to influence media coverage of a case.”  Here the authors find potential utility in emotional language, but do not explore the normative impact of emotional language on the rule of law. Others including Corley and Ward also used LIWC to assess the impact of relative emotional language in dissents.

This article takes a different approach by looking at emotional language in both majority opinions and dissents and then measuring the extent the justices’ used this language in opinions last term.  It uses the NRC Word-Emotion Association Lexicon for measurement. The NRC Lexicon measures anger, fear, anticipation, trust, surprise, sadness, joy, and disgust.  The dictionary is leveraged through the Syuzhet package in R. Unsigned decisions with no dissents including Trump v. Anderson were excluded from this analysis.

One important item to note is that while it might be surprising that many dissents have high levels of “positive” emotional words, this is because words such as “prove,” “engaged,” “innocent,” and “speedy” all fall under positive language. These are all terms that are used, for example, in Justice Jackson’s dissent in Trump v. United States.

Findings

There are obvious differences between the emotional language involved in particular cases and opinions although this is not necessarily correlated with the extent of the justices’ divisions in a case. Even though the justices all write majority opinions each term, they are not assigned opinions of equal potential emotional weight. As several of the previous studies ascertained though, any justice can dissent in any case, and therefore there is equal potential for each justice to infuse emotional language in any or all of the Court’s decisions.

I analyzed the data both with total emotional language counts and then by normalizing the emotional language in each opinion based on the opinion word counts. There are costs and benefits of both approaches. Total counts are helpful because they give a sense of the extent of the emotional language. This is important because a short opinion may have a lot of emotional language relative to the total opinion, but this language may not be large in the aggregate. Normalization helps though by showing the rate of emotional language use rather than just the total counts. This is helpful because a justice might author a long opinion with infrequent emotional language use, but due to the opinion length, the total emotional word count is substantial.

To begin, the decision with the most emotional language, not surprisingly, is Trump v. U.S.  A radar plot helps dissect Chief Justice Roberts’ use of emotional language in the majority opinion:

Here we see based on aggregate counts, he has the highest expression of fear, but also a pretty good mix of other emotions including both positive and negative language.

When Roberts’ opinion language is normalized and compared with the relative emotional language use in the dissents, we see the following:

Justice Jackson tends to use more relative emotional language than the other justices and Chief Justice Roberts uses the least (if the total numbers are used, the order from most emotional language to least is Roberts, Sotomayor, and then Jackson).  This shows how the picture changes when moving from aggregate count data to normalized figures.

With this in mind, we can look at cases listed in order of aggregate emotional language content based on majority and dissenting opinions:

Not surprisingly, the cases tend to be some of the more publicly salient of the term starting with Trump v. U.S. and Grants Pass and including Loper Brightand Rahimi in the top five for total emotional language content.

The normalized case ranking looks different based on the cases with the highest rates of emotional language used:

While Trump v. U.S.  and Erlinger v. U.S.are still at the top, we see other cases like Thornell v. Jones and McIntosh v. U.S.also near the top when emotional language is normalized based on the word counts of the majority opinions and dissents.

Looking at the total emotional language content (non-normalized) by justice we get a true sense of the justices that used the most emotional language last term.

* Note: Roberts’ one paragraph dissent in Wilkinson v. Garland was not included in any of the analyses

Justice Sotomayor used the most emotional language in her combined majority and dissenting opinions and Justice Barrett used the least. Since writing dissenting opinions is up to the discretion of the justices, I didn’t break this measure down further based on total number of opinions authored.

This ordering looks somewhat different when the emotional language is normalized by word counts.

Although Justice Sotomayor stays on top in both graphs, Justices Jackson, Barrett, and Thomas all rise in the ranks when the values are normalized.

To look a bit deeper into the justices’ normalized values, the next graph breaks these values down to majority and separate opinions:

Justice Thomas moves to the front of the majority opinion rate with Justices Sotomayor and Jackson trailing close behind, and Justice Barrett moves to the top of the dissent rate. Justice Kagan stays towards the bottom in both opinion categories.

Concluding Thoughts

The justices clearly are emotional actors and so Supreme Court opinions are not even nearly devoid of emotional language. It is also clear that the justices’ relative use of emotional language varies quite a bit, both between cases and between justices.  This should be a starting point of any conversation both of whether the justices add emotion into their opinions, and of whether case law includes emotional language generally. The meaning of this language use is much more complex.

While arguments for neutral principles might caution against the use of emotional language, realists may say that obfuscating emotional language use will only cloud the reality of Supreme Court decision making.

The normative implications inspire a much deeper discussion. Some will argue that since emotional responses are typical when people, even judges, respond to stimuli. Others might say that the more emotional an opinion, the more possibility there is for subjective feelings to play larger roles, especially when this comes at the expense of limiting doctrines including precedent.  Emotional language may also come in response to subconscious or conscious biases and so they may be hard to spot, even for seasoned judges.

Coming full circle, we could probably have inferred the likelihood of emotional language in Trump v. U.S. before the decision was released simply based on the political overtones and stakes of the case. The New York Times article then added details that underscored some of the emotions involved.

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at [email protected]. Find him on Twitter: @AdamSFeldman.