The Bread and Butter of Judicial Work

Opinions are the bread and butter of judicial work and one of the most important duties of judging. Crafting opinions provides courts the opportunity to explain their reasoning through legalist terms and provide direction to relevant actors (Hettinger, Lindquist, and Martinek Reference Hettinger2006; Corley et al. Reference Corley2011; Owens and Wedeking Reference Owens2011; Bowie, Songer, and Szmer Reference Bowie2014; Black et al. Reference Black2016). For example, at the US Supreme Court, judicial opinions not only explain the rationalization for its decisions, but they also influence US policy while constraining federal and state political actors and implementers (Maltzman, Spriggs, and Wahlbeck Reference Maltzman2000). Through opinions, courts exert power and influence upon various governmental actors, policy makers, and judicial elites, and “the language used in written opinions has tremendous importance in shaping subsequent developments both inside and outside the legal system” (Zilis and Wedeking Reference Zilis2020, 212).Footnote ⁴

Over the last decade scholars such as Corley et al. (Reference Corley2011) have demonstrated that lower federal courts shape the content of US Supreme Court opinion language. Beyond this seminal work, a wave of studies establishes that a broad range of legal writings, including litigant briefs (Corley Reference Corley2008), amicus briefs (Collins, Corley, and Hamner Reference Collins2014, Reference Collins2015), and lower court dissents (Corley et al. Reference Corley2011), directly influence the content of US Supreme Court opinions. More recently, scholarship has extended this line of work to state courts, about which evidence demonstrates that state high court judges borrow language from intermediate appellate courts (Savchak and Bowie Reference Savchak2016; Bowie and Savchak Reference Bowie2019).

Why Borrow from Lower State Court Opinions?

It is obvious that US Supreme Court justices would borrow language from litigant briefs, amicus briefs, and lower federal court majority opinions and dissents, mostly because these are documents from within the federal hierarchy and are composed by professional attorneys and prudently selected judges who have been vetted and are familiar with federal law. But we argue that many of the reasons accounting for the justices’ adoption of language from these documents can also be applied to state court opinions. First, justices may wish to incorporate language from lower court opinions with which they agree. This agreement may indicate that the lower court opinion was persuasive and clear (Savchak and Bowie Reference Savchak2016). Second, justices may prefer to incorporate the lower court’s version of the case facts into their own opinions, which sets the stage in how the facts of a case are framed by the Supreme Court. Finally, it may not be obvious to justices how the case should be decided, and thus looking to the lower court opinion for guidance in constructing their own opinions can prove to be fruitful (Klein and Morrisroe Reference Klein1999).

This pragmatic approach in looking to lower court judicial opinions as influential documents should not come as a surprise; we know that judges have ultimate control over the judicial opinions they write but that they “do not start with a blank slate” (Corley et al. Reference Corley2011, 41). Rather, judicial opinions follow a presentational rubric, typically including a statement of facts, list of legal issues, procedural history of the case, and legal ruling and argumentation (van Geel Reference van Geel2008). When it comes to borrowing language from lower court opinions, evidence shows that judges use the lower court opinions’ version of case facts or borrow language when they agree with the outcome of the lower court (Corley et al. Reference Corley2011; Savchak and Bowie Reference Savchak2016). Additionally, lower court opinions provide a guide to the legal reasoning and argumentation used to reach its decision (Schoenherr and Black Reference Schoenherr2019). And individual-level characteristics matter too; higher court judges borrow more language from prestigious lower court opinion authors, and higher court judges’ career traits, such as being appointed or elected, being a former law professor, or serving as a lower court judge, have been shown to be pivotal in state court judges’ choices in borrowing language from lower court opinions (Savchak and Bowie Reference Savchak2016; Bowie and Savchak Reference Bowie2019).

In suggesting the possibility that lower court judges can influence higher court judges’ opinion writing, we depart from the more typical top-down approach to legal influence, emphasizing lower court compliance with US Supreme Court precedents (Songer, Segal, and Cameron Reference Songer1994; Fix, Kingsland, and Montgomery Reference Fix2017; but see Fix and Kassow Reference Fix2020) and its ability to achieve policy change through its opinions (Spriggs Reference Spriggs1997). Here, we suggest that judicial influence can flow from the bottom of the judiciary to its higher levels (Rachlinski Reference Rachlinski2006; Savchak and Bowie Reference Savchak2016; Bowie and Savchak Reference Bowie2019), in that lower court judges may influence and mold US Supreme Court policy through the written opinions they issue, in turn enabling them with a sort of judicial power. Corley et al. (Reference Corley2011, 33) note that, “when the Supreme Court’s majority opinion utilizes the same language as the lower court opinion, the lower court has affected the nature and substance of the opinion, indicating that the lower court judges have influenced the doctrinal development of law.” Our approach, along with prior work, recognizes lower court judges and their opinions as having an important potential power in developing law and precedent in higher courts.

We know from prior research that justices adopt language from various legal documents, but do justices actually incorporate language from state court opinions? We explore this question preliminarily by analyzing the borrowing tendencies of US Supreme Court justices over a 20-year period, from 1995 to 2015. We calculate the percentage of majority opinions per justice that include borrowed language in our data set. Figure 1 illustrates that US Supreme Court justices have ample opportunities to borrow, that they have a propensity to do so, and that there are clear differences among them in their tendency to borrow language (or not). To highlight, during this period, Associate Justices O’Connor, Ginsburg, and Sotomayor were more likely to incorporate language from lower state court opinions. For example, Justice O’Connor incorporated lower state court language in approximately 90% of the majority opinions that she wrote, and Justice Ginsburg was a close second by borrowing from state court opinions in just over 80% of her majority opinions. On the other end of the spectrum, Justice Breyer was the only justice who in a majority of his opinions did not borrow language from state court opinions. While Justice Thomas was more likely to borrow than not, we still see that approximately 45% of his opinions did not include language from state court opinions. Clearly, borrowing language from state court opinions is the norm, although there is a wide range of borrowing proclivities.

Figure 1.

Percentage of majority opinions per justice that include borrowed language

Borrowing and Perceptions of State Courts

As we have argued, our particular attention is on state courts and the potential for their decisional reach to stretch beyond state boundaries. State courts not only influence policy for their states, but once a higher state court decision is appealed and reviewed by the US Supreme Court, they also have a stage upon which to influence policy nationwide. While there are several ways in which state courts might influence the work of the Supreme Court, one way to achieve these goals is to use the lower court opinion as a blueprint for the majority opinion of the Supreme Court. And, ultimately, justices will want to use state court opinions if those opinions will be useful for their goals.

But not all state court opinions have equal potential to be influential, and we focus here on the extent to which US Supreme Court justices’ professional preferences concerning judicial independence and high-quality legal writing affect their likelihood of borrowing language from the lower court opinion. Just as judicial scholars focus our professional inquiries on judicial selection methods in the states and the various consequences of those institutional choices (e.g., Hall Reference Hall2001; Bratton and Spill Reference Bratton2002; Bonneau and Hall Reference Bonneau2009, Reference Bonneau2016; Bonica and Sen Reference Bonica2017), as well as the skillfulness of judges’ writings (e.g., Goelzhauser and Cann Reference Goelzhauser2014; Black et al. Reference Black2016; Romano and Curry Reference Romano2020), we assert that Supreme Court justices also care about these issues of state court judicial independence and competence in their pursuit to preserve the legitimacy of the US judicial system, as well as their personal legal and policy goals.

US Supreme Court justices care about the institutional legitimacy of American courts, and they demonstrate their concerns in various ways, such as through their public comments during interviews and speeches (see Schmidt Reference Schmidt2013 and Hasen Reference Hasen2016), their own personal writings, statements in judicial opinions, and voluntary recusals from cases in which their impartiality may be questioned (see Fettig and Benesh Reference Fettig2016).Footnote ⁵ Justices extoll the value of consensus for its potential to increase the Court’s prestige and advise against writing separately for its cumulative “effect on the institution” (Rosen Reference Rosen2007). Tempered steps have been taken to increase institutional transparency: oral argument transcripts, opinions, and orders are now provided through its website (O’Brien Reference O’Brien2020). The Supreme Court also responds defensively to attacks from coordinate branches of government to ameliorate potential damage to their image of impartiality, such as when Chief Justice Roberts countered President Trump’s sorting of “Trump judges and Obama judges”: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them” (Sherman Reference Sherman2018). In other words, the justices are aware of their precarious position in a system in which their existence and efficacy rely so heavily on public confidence in their work.

US Supreme Court justices’ care and concern about the reputation of the American judiciary may lead to cautious behavior regarding susceptibility to influence from the lower courts, especially with regard to borrowing language from state courts that elect rather than appoint their judges and from judges who lack superior skills for writing clearly. If a judicial opinion is a pivotal document that can pronounce new law, give direction to lower courts, and mandate policy change from administrative agencies, it may also act as a platform for the writer’s preferences on professional and nonideological issues, such as how to best choose judges and superior writing abilities. Leonard and Ross (Reference Leonard2016, 711) note, “An underlying assumption of the normative debate regarding judicial elections is that a more divisive or politicized environment is damaging to the output of courts and perhaps the coherence of the law itself.” In other words, US Supreme Court justices may view opinions from elected judges as too politicized and subpar and would prefer to distance themselves from their legal writings. Doing so may preserve the gravity of their own opinions rather than putting in jeopardy the significance of their work. Supreme Court justices may also find fault with the content of elected judges’ opinions because their decisions appear “corrupted.” The dismissal of content from elected judges’ opinions may be evidence of harbored prejudice against judges chosen through political means rather than the more widely respected and familiar model of judicial appointments practiced within our federal system, a minority of American states, and most judiciaries throughout the world.

Several justices have been particularly vocal about and professionally active in educating the public on the need for judicial independence. Indeed, justices have gone so far as to use the majority opinion as an opportunity for expressing disdain for the evils of state judicial candidates’ personal requests for electoral campaign contributions. For example, in Williams-Yulee v. Florida Bar (575 U.S. 433, 437–38 [2015]), Chief Justice John G. Roberts offered careful guidance in his majority opinion: “Judges are not politicians, even when they come to the bench by way of the ballot. … Politicians are expected to be appropriately responsive to the preferences of their supporters. A judge instead must ‘observe the utmost fairness,’ striving to be ‘perfectly and completely independent.’” Associate Justice Sonia Sotomayor recently expressed similar discontent in a dissent from denial of cert in Woodward v. Alabama (571 U.S. 1045, 1050 [2013]): “What could explain Alabama judges’ distinctive proclivity for imposing death sentences in cases where a jury has already rejected that penalty? The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.” Other justices have been blunt in their views of judicial elections in the states. When asked about the process of electing judges during a 2013 interview, Associate Justice Ruth Bader Ginsburg stated, “I will be frank to say that I think it is a dreadful way to choose people for judicial office. Judges are to be impartial. They are to judge without fear or favor. They are not to be beholden to any group. But it may be a little hard, if a group of lawyers has funded your campaign, for you to be impartial, or even if you are, to protect the appearance of being impartial” (Miller Reference Miller2013). And devotion to the overall judicial branch may continue even into retirement, as former Associate Justice Sandra Day O’Connor has shown in her work on civics literacy and speaking out against elected judiciaries and their susceptibility to outside interests.

While much of the criticism against judicial elections focuses on threats to judicial impartiality and trust in courts, another aspect of the judicial selection debate involves perceptions of competence—or a lack thereof (e.g., Goelzhauser and Cann Reference Goelzhauser2014; Leonard and Ross Reference Leonard2016)—and US Supreme Court justices have heeded these additional concerns. For instance, Associate Justice Sandra Day O’Connor’s criticism of judicial elections is exemplified in how her initiative, the O’Connor Judicial Selection Plan, devotes much language to recruiting competent judges who “have excellent analytical ability” and “demonstrate excellent substantive legal knowledge, or a willingness to learn at the earliest opportunity” and who “undertake the research necessary to gain command of the facts and issues presented.”Footnote ⁶ Other judges recognize these problems as well. Judge Richard Posner, of the US Court of Appeals for the Seventh Circuit, proposed that elected judiciaries lack “judicial talent” (2005, 1268). And state judges, themselves, view the work of appointed judiciaries as higher quality than judges in elected systems (Cann Reference Cann2007). The research suggests, coupled with the justices’ own declared preferences for exceptional competency and appearances of independence, that they may view appointed and elected judiciaries differently when deciding to borrow.

Preliminarily, we find differences among US Supreme Court justices in whether they borrow from elected versus appointed state judges. Figure 2 provides an overview of justice borrowing based on selection method of the state court judges. We calculate the percentage of majority opinions written per justice that borrow language from states with elected judges versus states with appointed judges. Of the majority opinions in which Supreme Court justices adopted lower court language, justices are more likely to do so from states that appoint judges than states that elect judges.Footnote ⁷ Put another way, 59% of the opinions that incorporate language from the lower courts borrow from appointed state court judges. As figure 2 shows, during our study period Associate Justices Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer, and Kagan all preferred to borrow from appointed judges rather than elected state court judges. Interestingly, Justice O’Connor, who is probably the most outspoken in her disdain for the process of electing judges, borrowed language from elected judges in 71% of her majority opinions during this period (29% for appointed judges), with Justices Rehnquist, Roberts, and Thomas following similar patterns.

Figure 2.

Justice borrowing based on selection method of state court judges

Research confirms the concerns that US Supreme Court justices have in that elected judges play toward the wishes of the electorates to which they are accountable, even in the types of arguments they put forth, rather than being as independent minded as appointed judges (Huber and Gordon Reference Huber2004; Romano and Curry Reference Romano2020; but see Owens et al. Reference Owens2015). Meanwhile, scholars also suggest that appointed judges are more professional than elected judges, caring most about their reputations among legal counterparts, whereas elected judges are more concerned with dispensing justice quickly (Choi, Gulati, and Posner Reference Choi2010). Thus, we suggest that US Supreme Court justices will consider the selection method of the state court judge when deciding whether to borrow from the lower court opinion.

Judicial abilities may also be demonstrated on the job—most notably in judicial writing (Goelzhauser and Cann Reference Goelzhauser2014). A burgeoning body of work explores writing clarity by studying judicial opinions, and the bulk of this work establishes that clarity matters (Black et al. Reference Black2016; Nelson and Hinkle Reference Nelson2018; Fix and Fairbanks Reference Fix2020). The literature on opinion clarity has distinguished among three types: doctrinal, cognitive, and rhetorical (Owens and Wedeking Reference Owens2011; Black et al. Reference Black2016; Fix and Fairbanks Reference Fix2020). Because we believe the lower court opinion writing itself will influence the extent to which US Supreme Court justices borrow language, we are interested in the readability (or rhetorical clarity) of these lower court opinions (Owens and Wedeking Reference Owens2011; see also Fix and Fairbanks Reference Fix2020). As scholars have found, clearer opinions result in greater compliance by lower courts and other judicial audiences (Owens, Wedeking, and Wohlfarth Reference Owens2013; Black et al. Reference Black2016), particularly those bodies charged with implementing policy changes as a result of a judicial decision (Spriggs Reference Spriggs1997). In a similar vein, we suggest that justices will borrow more language from clear and well-written lower court opinions. Additionally, Justice Scalia, in his book with Bryan Garner on the art of persuading judges, notes that clarity should be valued “above all other elements of style” (Scalia and Garner Reference Scalia2008, 107). We expect Supreme Court justices, themselves, are also affected by the way a lower court opinion is written, so that clearer state court opinions will be viewed more favorably.

Likewise, US Supreme Court justices may avoid borrowing language from lower court opinions that are deemed unclear or poorly written. Plain English for Lawyers, one of the “go to” texts on legal writing, notes that the passive voice is not the preferred writing style because it can be ambiguous and “especially troublesome in legal writing” and may lead to poor argumentation (Wydick Reference Wydick1998, 32). Even the Federal Judicial Center’s Judicial Writing Manual (2020, 23) places a premium on using direct language and the active voice, resulting in a more comprehensible piece of writing. We expect that US Supreme Court justices will also disfavor opinions with larger amounts of passive-voice language in favor of those that are easier to understand.

Policy and Personal Considerations in Language Borrowing

Legal and policy concerns are unavoidable and play a well-documented role in judges’ work. The influence of ideology has been a mainstay in the judicial behavior literature (e.g., Brace and Hall Reference Brace1997; Brace, Langer, and Hall Reference Brace2000; Segal and Spaeth Reference Segal2002; Cross Reference Cross2007), where scholars have studied its impact on agenda setting, opinion assignments, and judicial decisions (Caldeira and Wright Reference Caldeira1988; Perry Reference Perry1991; Maltzman et al. Reference Maltzman2000; Bowie and Songer Reference Bowie2009). We suggest that the extent to which the US Supreme Court justices agree with the lower court ruling should influence whether they will borrow content for their own opinions. When affirming a judgment below, a justice may look to the lower court opinion for shortcuts in useful language that may be helpful for explaining their own legal rationale.

Ideological compatibility between the lower court decision and the Supreme Court matters (Maltzman et al. Reference Maltzman2000; Segal and Spaeth Reference Segal2002; Scott Reference Scott2006). Similar to Corley et al. (Reference Corley2011), we also suggest that lower court decisions that are incongruent to the preferences of the majority opinion writer will have less influence. Then again, justices may for both ideological and workload considerations incorporate language from lower court opinions that are ideologically congruent to the majority opinion author.

The significance of a lower court opinion may also lead US Supreme Court justices to consider borrowing its language. A published opinion is a mandatory authority and holds precedential value; it is inherently more significant than others because it speaks to a broader audience than simply the litigants in the case (Carp and Rowland Reference Carp1983). Justices may hold a higher opinion of these opinions and, therefore, favor the deliberative work behind its contents.

At the same time, justices may place less value on opinions composed by state intermediate appellate court judges rather than state supreme court justices. While certainly not the norm, losing litigants at the state intermediate appellate court may appeal to the US Supreme Court if their state’s high court refuses review. Because these opinions are written by less esteemed judges who have not yet reached the pinnacle of their state’s judiciary, US Supreme Court justices may eschew these opinions as less significant and low caliber.

Much of the US Supreme Court’s work is highly consensual, and thus opinions must be crafted to meet the needs of a growing number of concerns as more colleagues join the majority (Corley, Steigerwalt, and Ward Reference Corley2013). An opinion writer’s need to garner more votes may affect judicial outcomes; when more justices sign on to a majority opinion, the accommodation of their preferences can lead to less consequential and more diluted opinions (Rohde Reference Rohde1972; Maltzman et al. Reference Maltzman2000; Staudt, Friedman, and Epstein Reference Staudt2008). We suggest that these opinions allow writers less room to incorporate lower court opinion language as they write painstakingly to achieve a higher consensus that represents the views of their colleagues.

Apart from legal and policy considerations, US Supreme Court justices may have other instrumental reasons to borrow opinion language from the lower court. One of these reasons, we argue, is acclimating to the work of a justice. We suggest the acclimation pressures for new justices may induce language borrowing for their own opinions, and these pressures should be highest during their initial period of adjustment to the bench. Otherwise known as the “freshman effect,” the literature has shown that being new to the Supreme Court has played a pivotal role in the substance of majority opinions (Bowen Reference Bowen1995; Wood et al. Reference Wood1998; but see Bowen and Scheb Reference Bowen1993). For instance, at today’s Supreme Court, freshman justices write more separate opinions than justices in the pre-1940 period (Bowen Reference Bowen1995), but this number is still significantly lower than in later stages of their careers (e.g., Brenner and Hagle Reference Brenner1996). New justices may compromise their time for writing opinions in exchange for becoming acquainted with their new colleagues and judicial duties, including managing law clerks and dealing with complex legal issues. Or newer justices may struggle with the immense charge of composing an opinion to equal that of their more experienced colleagues, and this task may require more time. Either way, the trade-off may result in opinions that borrow larger amounts of language from the lower court opinion.