Study shows SCOTUS justices resort to 'intensifier' words more often in dissent
U.S. Supreme Court justices become more strident in their language when writing dissents, according to a new study of 526 opinions.
The study authors searched the opinions for 12 “intensifier” words such as “plainly” and “patently,” and found they occurred more often in dissents than majority opinions. The Washington Post reports on the study, found here (PDF) at the Oregon Law Review. Brigham Young has a press release here.
“Does being on the losing end of an argument change the manner in which a justice writes an opinion?” ask the researchers, Stetson University law professor Lance Long and Brigham Young professor William Christensen. To find out, they searched Supreme Court opinions between 2006 and 2009 for these intensifier words: very, obviously, clearly, patently, absolutely, really, plainly, undoubtedly, certainly, totally, simply, and wholly.
Accounting for differences in word count, Long and Christensen found that Justice Antonin Scalia had the highest rate of intensifier usage overall, followed by Justice John G. Roberts Jr. As a group, the study found, conservative justices used more intensifiers than liberals. The study searched opinions before Justices Sonia Sotomayor and Elena Kagan joined the court.
Long and Christensen created a “Jekyll-Hyde index” to show which justices had the greatest increase in intensifier rate when changing from a majority opinion to a dissent. Swing Justice Anthony M. Kennedy led that index. His majority opinions used the least intensifiers, but he more than doubled their usage in dissent. Second and third on the Jekyll-Hyde scale were Justices Antonin Scalia and Clarence Thomas. At the other end of the scale was Justice Ruth Bader Ginsburg, who had the smallest increase in intensifiers in her dissenting opinions.