Yesterday I had the privilege of presenting research at a virtual workshop organized by the AALS Legislation section and @jessecross. I discussed an empirical project on #SupremeCourt briefing practices. In particular, I've studied how litigants have changed their approach to arguing statutory cases during the era of the rise of textualism.
We don't have much systematic data on briefs.
A few key findings and figures are in the posts below.
(post 2 of 4)
The time period is 1985 to 2020, and I have over 8000 briefs.
Both the Court’s opinions and the briefs cite textualist tools (dictionaries and textual canons) more than they used to, as one would expect. The Court cites legislative history less than it used to, but the briefs do not parallel the decline in the opinions’ use of that tool. See the image, which has corresponding charts for briefs (left) and opinions (right). Dictionaries are red lines, leg hist are blue.
. . .
(3 of 4)
Opinions citing only dictionaries are now common. Briefs cite both sources.
However, the briefs emphasize legislative history much less than they used to. See the picture below, which shows two different measures of emphasis. The panel on the left shows a drop in briefs that cite legislative history at least three times (dotted blue line). The panel at right shows references to legislative intent (blue) and plain meaning (red) in argument headings in tables of contents.
Also . . .
(post 4 of 4)
I also looked at different kinds of litigants. Elite litigators seem to be a little more responsive to the Court’s shifting patterns compared to non-elites.
The Solicitor General has a high and pretty steady rate of citation of legislative history compared to other litigants, though it too emphasizes it less than in the past.
The paper isn’t on SSRN yet, but I’ll update this with a link when available.
Updating this thread to note that the draft is now posted on SSRN.
“Supreme Court Litigators in the Age of Textualism” examines 35 years’ worth of #SupremeCourt briefs to see how litigators’ use of interpretive tools has changed over time and how their practices compare to the Court’s practices.
Link here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4339838
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Abstract:
Aaron Bruhl