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The Use of Rhetorical Sources by the U.S. Supreme Court

Authors


  • The author would like to thank David Klein and David O'Brien for their helpful comments and advice, as well as Gavin Reddick, Richard Drew, Mark Hurwitz, Bradley Canon, and Michael Solimine, who provided assistance at an earlier stage of the project. Special thanks are also extended to Paul Wahlbeck for sharing data on opinion circulation, and to Herbert Kritzer and the anonymous reviewers at the Law & Society Review.

Please address correspondence to Robert Hume, Department of Political Science, Fordham University, Faber Hall (6th Floor), Bronx, NY 10458; e-mail: rhume@fordham.edu.

Abstract

This study considers whether U.S. Supreme Court justices use opinion content strategically, to enhance the legitimacy of case outcomes. This hypothesis is tested by examining the Court's use of rhetorical sources, which are references to esteemed figures and texts that corroborate the justices' views. The data are consistent with the position that justices use rhetorical sources strategically, citing them when the legitimacy of their actions is lowest, such as when they are overturning precedent, invalidating state or federal law, or issuing directives from a divided bench. The study also tests several other explanations for the use of these sources, such as legal considerations, the justices' ideologies, and efficiency concerns.

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