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Supreme Court justices get defensive when losing a vote, BYU study says

Published: Monday, July 29 2013 1:11 p.m. MDT

The U.S. Supreme Court in Washington is seen on June 27, 2012.

Alex Brandon, Associated Press

PROVO — Despite their high legal standing, Supreme Court justices are subject to the same foibles that plague all human rhetoricians, according to a study out of BYU and Stetson University.

An analysis of U.S. Supreme Court opinions from 2006-09 found that the justices were more likely to include adverbs such as "clearly," "obviously" or "patently" when writing minority opinions, suggesting the justices take a subconsciously defensive stance when they have lost a vote, said lead author Lance Long, a professor of legal skills at Stetson University's College of Law.

Intensifiers such as the adverbs in question are often thought to be a sign that a writer is attempting to prop up a poorly constructed argument, Long said, and legal writers are typically told to avoid using them. In fact, Long said he will call students to the carpet if they rely too heavily on intensifiers.

But when the justices write dissenting opinions, intensifiers sneak into the language they choose. It all fits nicely with psychological theories suggesting humans become instinctively defensive when they suspect their beliefs and opinions may be threatened, Long said.

"We're not at our best when we feel like we have to take a defensive posture," he said.

It also fits into Long's theory of argumentative threat, which suggests lawyers and judges will resort to defensive language when they are losing or suspect they will lose a case. Long has researched his theory with the help of William Christensen, a professor of statistics at BYU.

Though the researchers had hypothesized that intensifiers would appear more often in dissenting opinions, the stark difference between the defensive language in minority opinions and the calm rhetoric of majority opinions surprised Christensen.

"One of my jobs is to be the skeptic and to make sure we're not overstating things," Christensen said, "and I was frankly surprised by how sharply and consistently people write with an increased use of intensifiers."

All nine justices consistently adopted intensifiers in their writing when representing the minority, but to differing degrees. Justice Ruth Bader Ginsburg was the most level opinion writer, adding a nominal number of intensifiers to her minority opinions. On the other hand, Justice Anthony Kennedy nearly tripled the number of intensifiers he used when dissenting.

Despite the strong correlation, Edward Carter, a BYU associate professor who has studied oral arguments in the Supreme Court, said he would hesitate to attribute the cause of the correlation to the minority's defensive stance alone. Justices who write the dissenting opinion are representing the vote's minority, and the resulting opinion is consequently revised and edited by fewer justices, he said. Because they have already lost the vote, the minority may also feel less like they need to persuade with their argument.

However, he too acknowledged the human element in legal writing.

"As a lawyer, I find myself tempted to do that," Carter said. "Usually (intensifiers) sound good in the first draft."

One way or the other, the study was an interesting illustration of the human element in the U.S. courts system, even at the highest levels, Long and Carter agreed.

"I think it's because we're all human," Long said. "And as much as we try to remove our emotions and our dislike of losing, it comes out."

EMAIL: epenrod@deseretnews.com

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