Studies have established the influence of ideology on the answers justices give to legal questions; this study shows that the questions themselves are often selected, framed, and phrased in a way that promotes ideologically-driven answers. By examining a variety of linguistic techniques used to describe just the facts of constitutional criminal procedure cases—separate from the legal analysis—we show the justices are engaging in highly strategic behavior. The facts included, omitted, or emphasized vary with the ideology of the justices and are predictable not just based on voting behavior in other criminal procedure cases but in all Supreme Court cases. We undertake this analysis both qualitatively and quantitatively. For the latter, we created a novel dataset consisting of the complete text of the fact portions of every Supreme Court opinion dealing with police investigation since the beginning of the Roberts Court, 2005–2022 terms. We also created six sets of linguistic variables to test the effect of different factors on judicial framing of case facts: hedges and intensifiers; extent of abstract and specific language; positive versus negative framing; inclusion of surplus facts and omission of relevant facts; stigmatization versus personalization of individuals; and use of active versus passive voice. Lastly, we created two new measures of judicial behavior in terms of outcomes—the “pro-prosecution score” in criminal procedure cases and the “pro-conservative score” in all non-criminal procedure cases. We show that the justices make use of strategic fact manipulation to bring about outcomes in line with their pro- or anti-prosecution tendencies, as well as their pro- or anti-conservative tendencies. Yet, not all justices partake in this strategy equally: the relative moderates of the Court make little use of strategic fact manipulation, whereas the extremists on both ends of the Court make far more use of the techniques we identify. Framing a characterization as a “fact” presents an impression of objectivity and reliability; but if even the starting place for a Supreme Court opinion is ideologically tilted, if each side is entitled to their “alternative facts,” then legal decision-making loses the promised legitimacy of being differentiable from the political process.
Tonja Jacobi & Eryn Mascia,
Alternative Facts: The Strategy of Judicial Rhetoric,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol73/iss2/3