From the abstract for Linda L. Berger and Eric Nystrom, A Rhetorical-Computational Analysis of Justice Antonin Scalia’s ‘Remarkable Influence’: The Unexpected Importance of Deceptively Unanimous and Contested Majority Opinions (Journal of Appellate Practice and Process, Vol. 20, No. 2, 2020, Forthcoming):
What constitutes judicial influence and how should it be measured? Justice Antonin Scalia was known for his memorable phrasing (“this wolf comes as a wolf,” “like a ghoul in a late-night horror movie”) and for being cited at a rate twice that of his colleagues. Justice Elena Kagan gave him credit for transforming “all of us” into statutory textualists and constitutional originalists. After his death, critics gave mixed reviews of the extent of his influence on the Supreme Court, other judges, law students, and the general public.
Curious about the broader role that rhetoric plays in judicial influence over time, we undertook a rhetorical-computational analysis of the 282 majority opinions written by Justice Scalia during his 30 years on the U.S. Supreme Court. Our analysis is the first to examine the full majority opinion output of a Supreme Court justice using a unique “medium data” approach that combines rhetorical coding with quantitative analysis relying on Shepard’s Citations and LexisNexis headnotes.
The results suggest that the frequency of citations by later courts to Justice Scalia’s majority opinions—one of the most-often-used proxies for influence—was not solely the result of his efforts to be persuasive and to wield influence. Instead, we found that Justice Scalia’s deceptively unanimous and contested majority opinions were over-represented in later citation counts compared with his truly unanimous and strong majority opinions. This over-representation indicates that later courts citing those opinions continued to disagree about the meaning or the application of the rules established in the majority opinion and were continuing to cite both the majority and the concurrence or dissent.
Our analysis further suggested that later courts appeared to select from among Justice Scalia’s statements in earlier opinions not only based on the rhetorical framing of the statement but also depending on the rhetorical context in which those later courts found themselves. Thus, federal appellate courts tended to discuss both rules and arguments more extensively while the lower federal courts and the state courts were somewhat more likely to simply follow the rules. Finally, our analysis indicated that higher citation counts over time coincided with rule statements that either created or contributed to lingering disputes about interpretation or application. That kind of sustained citation frequency likely is not the long-lasting influence Justice Scalia sought.