The Ideology of Supreme Court Opinions and Citations

Author:Frank B. Cross
Position::Professor of Business Law, McCombs School of Business; Professor of Law, University of Texas School of Law; Professor of Government, University of Texas at Austin
Pages:693-751
SUMMARY

A great deal of social, scientific, and legal research has been devoted to assessing the role of ideology in the Supreme Court’s decisions. But this research has treated each case as equally important and entirely ignored the language of the opinions themselves. Yet it is the opinion’s language, and its effect on future cases, that is the primary output of the Court and reflects the greatest... (see full summary)

 
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693
The Ideology of Supreme Court Opinions
and Citations
Frank B. Cross
ABSTRACT: A great deal of social, scientific, and legal research has been
devoted to assessing the role of ideology in the Supreme Court’s decisions.
But this research has treated each case as equally important and entirely
ignored the language of the opinions themselves. Yet it is the opinion’s
language, and its effect on future cases, that is the primary output of the
Court and reflects the greatest potential ideological meaning. This effect can
be partially measured through an analysis of the use of ca ses as precedents
for future decisions. In this Article, I examine this use and whether the
citing case was itself liberal or conservative, and I consider the nature of the
citation as well. This enables me to ascertain the opinions that had the
greatest ideological impact, liberal or conservative.
I. SOCIAL SCIENCE RESEARCH AND THE NEW LEGAL REALISM .................. 696
II. THE IMPORTANCE OF PRECEDENTIAL POWER ........................................ 698
A. THE LIMITATIONS OF OUTCOME CODING .......................................... 698
B. THE IMPORTANCE OF PRECEDENTIAL POWER AND THE STUDY OF
CITATIONS ....................................................................................... 702
1. Opinion Style .......................................................................... 703
2. Precedential Authority ........................................................... 705
III. PRELIMINARY STUDIES OF IDEOLOGY AND PRECEDENTIAL POWER ......... 712
IV. THE IDEOLOGY OF LEADING OPINIONS.................................................. 715
A. CITATION CHARACTERISTICS ............................................................ 717
B. LIBERAL VS. CONSERVATIVE CITATIONS ............................................. 719
C. DATA AND MEASURES ....................................................................... 722
1. Cases Measured ...................................................................... 723
2. Measurement Scales ............................................................... 723
3. Other Factors .......................................................................... 724
Herbert D. Kelleher Centennial Professor of Business Law, McCombs School of
Business; Professor of Law, University of Texas School of Law; Professor of Government,
University of Texas at Austin.
694 IOWA LAW REVIEW [Vol. 97:693
4. Basic Analytical Approach ..................................................... 725
D. ANALYSIS OF IDEOLOGICAL CONTENT ................................................ 726
1. Relative Treatment of Major Opinions ................................ 726
2. Characterizing Cases .............................................................. 730
a. The Most Liberal and Conservative Opinions ...................... 730
b. The Most Influential Liberal and Conservative Opinions .... 734
V. THE FEATURES OF EFFECTIVE IDEOLOGICAL OPINIONS ......................... 737
CONCLUSION ......................................................................................... 744
APPENDIX ............................................................................................... 746
2012] THE IDEOLOGY OF SUPREME COURT OPINIONS & CITATIONS 695
Scholars today widely recognize that Supreme Court opinions are not
purely legal but, to some degree, reflect the ideology of the Justices. To date,
however, the study of this effect has been quite crude. Researchers have
examined the votes of Justices and characterized the ideological direction of
the case outcome on a binary (liberal vs. conservative) basis but have not
assessed the content of the opinion. Some opinions, though liberal in
outcome, may not truly create a liberal legal standard in subsequent
application.
The content of an opinion is its essence. It establishes the doctrine that
becomes stare decisis and governs future decisions. The content of this
doctrine, though it is vital to the law,1 has been “woefully understudied,”
both theoretically and empirically.2 This study embarks on an effort to
understand the practical legal meaning of the content of Supreme Court
opinions based upon the ideological nature of the citations received by
those opinions.
In this article, I take 261 leading opinions of the Supreme Court issued
between 1954 and 19963 and examine their use by subsequent opinions of
the Court. I consider both the treatment of the opinion by later courts (e.g.,
followed, distinguished, etc.) and the ideological direction of the citing
opinion. Through this process, I can evaluate the true ideological impact of
opinions. For instance, if a supposed liberal opinion is commonly
distinguished and cited in support of conservative outcomes, it may not be
so liberal. I use this analysis to identify the most ideological and ideologically
powerful opinions on several different measures and consider which
Supreme Court Justices authored the most ideologically powerful opinions.
I begin by reviewing the evidence on ideological decisionmaking at the
Supreme Court as claimed by legal realists. However, since an actual
outcome affects only the parties to the case, the substantive content of the
opinion, and not just the outcome, must be considered. Precedents are the
best way to study the true impact of a Supreme Court opinion. This study
considers those consequences.
After reviewing the research on the nature of opinion writing and the
existing research on the impact of precedents, I review the measures for
ideology and impact. Only very limited research has been conducted on the
relative ideological significance of precedents. My study essentially analyzes
citations to opinions, the strength of those citations, and whether the
decision in the citing case was liberal or conservative as a way to measure the
1. See Edward Rubin & Malcolm F eeley, Creating Legal Doctrine, 69 S. CAL. L. REV. 1989,
1990 (1996) (suggesting that the “ubiquity of the doctrinal creation process . . . underscores
the need for a theory of its operation”).
2. Emerson H. Tiller & Frank B. Cross, What Is Legal Doctrine?, 100 NW. U. L. REV. 517,
517 (2006).
3. See infra Appendix (listing the 261 cases analyzed).

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