BYU study: Supreme Court justices don't like to lose

2013-07-31T00:24:00Z 2013-08-27T06:12:37Z BYU study: Supreme Court justices don't like to loseBilly Hesterman - Daily Herald Daily Herald
July 31, 2013 12:24 am  • 

PROVO - A new study by a BYU professor has found that the nation's top judges don't go down without a fight.

Brigham Young University statistics professor William Christensen recently published a report in the Oregon Law Review that found that U.S. Supreme Court justices ramp up their argumentative language when writing the dissent in a court opinion.

In an analysis of opinions written from 2006 to 2009, Christensen and co-author of the report Lance Long of Stetson University found the usage of "intensifiers" increases when a judge is writing a dissenting opinion of the court.

Words such as obviously, patently, really, undoubtedly or wholly were found more often in the dissent, according to the study. The words are identified to be more persuasive driven and it could be argued that justices are looking to make a final push for their point of view by using the intensifiers in their dissent.

Christensen said Justice Antonin Scalia and Chief Justice John Roberts use intensifiers at the highest rate among all nine of the justices. Christensen noted the irony of their usage of the intensifiers is that both have spoken publicly against being overly dramatic in legal writings.

Roberts told the law students at Northwestern University that many briefs submitted to the court use the argumentative language and stated that legal writers could do better to explain their point and not get lost in the emotional text. Scalia wrote in his book, "The Art of Persuading Judges," that the use of intensifiers hurts a legal opinion's standing.

"You'll harm your credibility -- you'll be written off as a blowhard -- if you characterize the case as a lead-pipe cinch with nothing to be said for the other side. Even if you think that to be true, and even if you're right, keep it to yourself," wrote Scalia.

Christensen explained that since all of the justices increase their use of intensifiers in their dissents, it could not be said this is a problem among the conservative or liberal wing of the top court. He stated it was more likely a coincidence that the two top violators of the intensifiers right now are conservatives and said it could easily be a liberal in the future.

Long said the main takeaway from the study was that it is difficult to completely control one's subconscious tendencies and emotions in written work product, even if one is a Supreme Court justice. He noted the lesson to learn from the justices is one should carefully edit documents when they are responding to a perceived threat.

-- Billy Hesterman covers the Utah State Legislature and local politics for the Daily Herald. You can follow him on Twitter at: @billyhesterman
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