Disagreeable Rhetoric and the Prospect of Public Opposition: Opinion Moderation on the U.S. Supreme Court

• Author: Michael A. Zilis,Justin Wedeking
• Date: 01 June 2018
• DOI: 10.1177/1065912917738578
• Published date: 01 June 2018
• Subject Matter: Articles

https://doi.org/10.1177/1065912917738578

Political Research Quarterly

2018, Vol. 71(2) 380 –394

© 2017 University of Utah

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DOI: 10.1177/1065912917738578

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Article

Introduction

The study of elite rhetoric and its influence in democracies

has been a core focal point of scholars for quite some time.

While electoral campaigns and policy debates are proba-

bly the easiest examples of elite rhetoric, its study extends

to other areas such as the campaign to ratify the constitu-

tion (Riker 1996), as well as congressional and presiden-

tial behavior (Kriner and Shen 2014; Whitford and Yates

2003). The fact that elite rhetoric permeates just about all

areas of politics illustrates its broadly conceived nature

and importance. One well-known finding from research

on campaign rhetoric finds that negative messages tend to

be effective (Fridkin and Kenney 2011). In fact, the find-

ing that citizens respond to negative rhetoric during cam-

paigns is intuitive because in democracies elections are

designed to consider and respond to public opinion.

The importance and study of rhetoric, however, extend

beyond elected elites. For example, research examines

legal actors (e.g., attorneys and justices) and how they

frame legal arguments, finding that there are strategic

considerations that influence the content of their message

(Wedeking 2010). When considering rhetoric from

unelected elites that enjoy some insulation from the pres-

sures of public opinion, it is not obvious or clear why they

would be concerned about moderating their rhetoric in

response to public opinion. Yet, research shows that

unelected bodies such as the Supreme Court do modify

their behavior under certain conditions in response to

public opinion and political pressure (Casillas, Enns, and

Wohlfarth 2011; McGuire and Stimson 2004). This raises

an important question: under what conditions does con-

cern for public opinion lead unelected elites to adjust

their use of disagreeable rhetoric? We answer this ques-

tion by expanding our theoretical and empirical under-

standing of the use of elite rhetoric and argue that a key

feature of the political process, the salience of the issue,

has a powerful moderating influence on when unelected

elites use negative rhetoric. To test this argument, we

explore the use of negative rhetoric in the context of the

written opinions of the U.S. Supreme Court.

Even as various forms of negativity and incivility in

American politics are a source of interest for scholars,

there is increasing concern with disagreeableness on the

Court, with commentators lamenting that negative lan-

guage means the institution is “acting like Congress” and

738578PRQXXX10.1177/1065912917738578Political Research QuarterlyWedeking and Zilis

research-article2017

1University of Kentucky, Lexington, USA

Corresponding Author:

Michael A. Zilis, Department of Political Science, University of

Kentucky, 1651 Patterson Office Tower, 120 Patterson Drive,

Lexington, KY 40506, USA.

Email: Michael.zilis@uky.edu

Disagreeable Rhetoric and the

Prospect of Public Opposition: Opinion

Moderation on the U.S. Supreme Court

Justin Wedeking1 and Michael A. Zilis1

Abstract

Elite rhetoric is an important aspect of democracy, and understanding why elites alter their rhetorical tone is vital to

understanding the nature of public–elite interaction. In this paper, we identify the conditions under which insulated

elites respond to public opinion by changing the amount of disagreeable rhetoric they emphasize. We examine

Supreme Court opinions and theorize that the majority limits the use of disagreeable rhetoric—language with harsh,

unpleasant, or negative connotations—in salient cases with the intention of dulling public opposition to rulings. We

test our expectations on two levels, the first using a broad measure of public mood on a large sample of cases and the

second using a small sample with issue-specific public opinion measures. We find that as public opinion diverges from

the Court, the majority tones down its disagreeable rhetoric, but only in salient cases.

Keywords

Supreme Court, public opinion, disagreeable rhetoric, text analysis