A
Sunday
morning
article
in
the
New
York
Times
begins,
“Last
February,
Chief
Justice
John
G.
Roberts
Jr.
sent
his
eight
Supreme
Court
colleagues
a
confidential
memo
that
radiated
frustration
and
certainty
[referring
to
the
D.C.
Circuit’s
decision
in
the
Donald
Trump
immunity
case].”
The
article
continues
describing
Roberts’
Feb.
22nd
memo
to
the
justices,
“He
wrote
not
only
that
the
Supreme
Court
should
take
the
case
–
which
would
stall
the
trial
–
but
also
how
the
justices
should
decide
it.”
This
approach
seems
a
far
cry
from
the
role
of
the
judge
the
Chief
described
in
his
confirmation
hearings,
one
where
he
would,
“…be
open
to
the
considered
views
of
my
colleagues
on
the
bench…I
will
remember
that
it’s
my
job
to
call
balls
and
strikes,
and
not
to
pitch
and
catch.”
Later
in
the
Times
article,
describing
the
Fischer
January
6th
case,
the
authors
relate,
“The
chief
justice
assigned
the
opinion
to
Justice
Alito,
according
to
several
court
insiders.
But
months
later,
Chief
Justice
Roberts
updated
the
Court:
Justice
Alito
was
no
longer
the
author.”
Then
the
authors
describe,
“Four
days
earlier,
The
Times
had
reported
on
the
upside-down
flag
that
flew
at
the
Alito’s
home
soon
after
the
Jan.
6
insurrection
at
the
capital.”
While
details
like
the
ones
in
the
Timesarticle
very
seldom
become
public
knowledge,
they
point
to
something
both
obvious
and
perhaps
non-obvious:
the
justices
do
not
decide
opinions
in
a
vacuum
of
case
law.
No,
the
justices
bring
feelings,
preconceptions,
and
ideals
(at
very
least)
into
their
decisions.
This
isn’t
the
first
time
such
realities
were
made
public
by
the
justices’
deeds
or
actions.
Several
years
before
Roberts’
nomination,
in
2001,
then
Second
Circuit
Judge
Sonia
Sotomayor
spoke
at
U.C.
Berkeley
saying,
“I
would
hope
that
a
wise
Latina
woman
with
the
richness
of
her
experiences
would
more
often
than
not
reach
a
better
conclusion
than
a
white
male
who
hasn’t
lived
that
life.”
Later,
during
her
confirmation
hearings
in
2009,
Sotomayor
was
forced
to
backtrack
as
she
stated,
“It
is
clear
from
the
attention
that
my
words
have
gotten
and
the
manner
in
which
it
was
understood
by
some
that
my
words
failed…They
didn’t
work.”
Thinking
through
Roberts
statements
and
actions
as
described
in
the
Timesarticle
and
Sotomayor’s
point
about
individual
experience
in
judging
harkens
back
to
legal
principles
articulated
by
Herbert
Wechsler
in
his
seminal
piece
from
1959
Towards
Neutral
Principles
of
Constitutional
Law.
Wechsler
described,
“I
put
it
to
you
that
the
main
constituent
of
the
judicial
process
is
precisely
that
it
must
be
genuinely
principled,
resting
with
respect
to
every
step
that
is
involved
in
reaching
judgment
on
analysis
and
reasons
quite
transcending
the
immediate
result
is
achieved.
To
be
sure,
the
courts
decide,
or
should
decide,
only
the
case
they
have
before
them.
But
must
they
not
decide
on
grounds
of
adequate
neutrality
and
generality,
tested
not
only
by
the
instant
application
but
by
others
that
the
principles
imply?
Is
it
not
the
very
essence
of
judicial
method
to
insist
upon
attending
to
such
other
cases,
preferably
those
involving
an
opposing
interest,
in
evaluating
any
principles
avowed.”
Following
Wechsler’s
thought,
the
judge
is
fungible,
the
outcome
should
be
found
by
any
judge
doing
proper
diligence
in
situating
each
case
in
the
relevant
legal
precedent
and
constitutional
or
statutory
context.
Although
it
has
long
since
become
generally
accepted
that
law
is
not
decided
in
such
a
vacuum,
the
various
mechanisms
that
fuel
judges’
differing
interpretations
of
similar
legal
matters
have
only
become
clearer
over
time.
In
other
works
such
as
Terry
Maroney’s
Judges
and
their
Emotions,
the
idea
of
a
neutral
judge
is
put
under
a
microscope
when
Maroney
writes,
“Emotion
traditionally
has
been
counted
among
the
primary
sources
of
fallibility
and
bias.
The
task
of
the
legal
system,
under
this
view,
is
to
systematically
reduce
the
opportunities
for
judicial
emotion
to
insert
itself;
the
task
of
the
good
judge
is
to
prevent
emotion
from
exerting
any
influence
wherever
such
opportunities
remain.”
While
this
might
be
an
ideal
picture
of
judging,
it
seems
that
in
reality,
judges,
not
shockingly,
do
respond
to
emotional
stimuli.
Donald,
Rachlinski,
and
Wistrich
have
performed
rigorous
experiments
of
judges
(really
some
of
the
only
near
true
experiments
involving
judges)
and
their
findings
are
telling.
They
wrote,
“…in
our
study
using
the
implicit
association
test,
we
found
that
80
percent
of
white
judges
more
strongly
associated
Black
faces
with
negative
words,
and
white
faces
with
positive
words.”
Later
on,
they
mention,
“We
also
found
that
judges
sentenced
a
female
criminal
defendant
less
harshly
than
an
identical
male
defendant…the
result
is
still
unequal
treatment
of
identically
situated
defendants.”
One
of
the
interesting
findings
of
the
authors
is
that
“…judges
have
a
difficult
time
accepting
their
weaknesses,
especially
when
it
comes
to
implicit
bias…When
it
comes
[to]
avoiding
racial
bias
in
decision-making,
97
percent
rate
themselves
as
better
than
the
median
judge.”
Even
though
the
present
article
is
only
a
cursory
examination
of
emotions
in
judging,
it
does
dictate
a
potential
ideal
and
a
reality.
While
the
ideal
might
be
of
a
judge
that
applies
the
law
without
regard
to
emotional
stimuli,
based
on
the
text,
possibly
on
a
case’s
implications,
but
devoid
of
personal
feelings
and
emotions,
the
reality
is
much
more
complex.
This
article
sets
out
to
probe
the
reality,
not
through
external
statements
alone,
but
through
the
justices’
judicial
writings.
At
the
bottom
of
it
all,
this
is
not
necessarily
a
critique
of
the
application
of
emotion
in
judging,
but
merely
to
provide
a
sense
of
the
extent
of
emotion
in
Supreme
Court
decisions,
and
of
the
possible
correlates
of
this
relationship.
The
article
proceeds
by
examining
the
majority
opinions
and
dissents
from
the
2023
Supreme
Court
Term
to
see
the
extent
of
the
emotional
language
in
the
justices’
opinions,
when
it
arises,
and
whether
there
are
disparities
between
the
justices.
The
normative
stakes
of
this
discussion
were
highlighted
above
for
the
sake
of
debate
but
without
regard
to
the
appropriate
approach.
This
article
presents
a
quantitative
analysis
to
hopefully
infuse
more
real-world
substance
from
the
Supreme
Court
into
this
discussion.
Measures
In
the
period
between
2010
and
2020,
several
political
scientists
authored
studies
examining
the
role
of
emotions
in
judging.
The
main
hypothesis
was
that
judges
use
emotionally
charged
language
when
they
implicitly
or
explicitly
disagree
with
a
party’s
argument
or
position.
Thus,
the
articles
proceed
that
judges
(especially
Supreme
Court
Justices)
are
likely
to
vote
against
the
party
when
they
use
more
emotional
language.
In
one
of
the
first
studies,
Black,
Treul,
and
Johnson
used
the
Dictionary
of
Affect
in
Language
to
measure
oral
argument
speech.
They
posited,
“Our
results
suggest
that
when
the
justices
focus
more
unpleasant
language
toward
one
attorney,
the
side
he
represents
is
more
likely
to
lose.”
In
a
2016
study,
Bryan
and
Ringsmuth
used
the
Linguistic
Inquiry
and
Word
Count
(LIWC)
dictionary
to
measure
emotional
language
in
dissents
and
concluded,
“…our
finding
that
negative
dissents
increase
newspaper
coverage
of
a
case
reinforces
the
conventional
wisdom
that
conflict
enhances
the
newsworthiness
of
an
event…[t]he
results
show
that
individual
justices
are
in
a
position
to
influence
media
coverage
of
a
case.”
Here
the
authors
find
potential
utility
in
emotional
language,
but
do
not
explore
the
normative
impact
of
emotional
language
on
the
rule
of
law.
Others
including
Corley
and
Ward
also
used
LIWC
to
assess
the
impact
of
relative
emotional
language
in
dissents.
This
article
takes
a
different
approach
by
looking
at
emotional
language
in
both
majority
opinions
and
dissents
and
then
measuring
the
extent
the
justices’
used
this
language
in
opinions
last
term.
It
uses
the
NRC
Word-Emotion
Association
Lexicon
for
measurement.
The
NRC
Lexicon
measures
anger,
fear,
anticipation,
trust,
surprise,
sadness,
joy,
and
disgust.
The
dictionary
is
leveraged
through
the
Syuzhet
package
in
R.
Unsigned
decisions
with
no
dissents
including
Trump
v.
Anderson
were
excluded
from
this
analysis.
One
important
item
to
note
is
that
while
it
might
be
surprising
that
many
dissents
have
high
levels
of
“positive”
emotional
words,
this
is
because
words
such
as
“prove,”
“engaged,”
“innocent,”
and
“speedy”
all
fall
under
positive
language.
These
are
all
terms
that
are
used,
for
example,
in
Justice
Jackson’s
dissent
in
Trump
v.
United
States.
Findings
There
are
obvious
differences
between
the
emotional
language
involved
in
particular
cases
and
opinions
although
this
is
not
necessarily
correlated
with
the
extent
of
the
justices’
divisions
in
a
case.
Even
though
the
justices
all
write
majority
opinions
each
term,
they
are
not
assigned
opinions
of
equal
potential
emotional
weight.
As
several
of
the
previous
studies
ascertained
though,
any
justice
can
dissent
in
any
case,
and
therefore
there
is
equal
potential
for
each
justice
to
infuse
emotional
language
in
any
or
all
of
the
Court’s
decisions.
I
analyzed
the
data
both
with
total
emotional
language
counts
and
then
by
normalizing
the
emotional
language
in
each
opinion
based
on
the
opinion
word
counts.
There
are
costs
and
benefits
of
both
approaches.
Total
counts
are
helpful
because
they
give
a
sense
of
the
extent
of
the
emotional
language.
This
is
important
because
a
short
opinion
may
have
a
lot
of
emotional
language
relative
to
the
total
opinion,
but
this
language
may
not
be
large
in
the
aggregate.
Normalization
helps
though
by
showing
the
rate
of
emotional
language
use
rather
than
just
the
total
counts.
This
is
helpful
because
a
justice
might
author
a
long
opinion
with
infrequent
emotional
language
use,
but
due
to
the
opinion
length,
the
total
emotional
word
count
is
substantial.
To
begin,
the
decision
with
the
most
emotional
language,
not
surprisingly,
is
Trump
v.
U.S.
A
radar
plot
helps
dissect
Chief
Justice
Roberts’
use
of
emotional
language
in
the
majority
opinion:
Here
we
see
based
on
aggregate
counts,
he
has
the
highest
expression
of
fear,
but
also
a
pretty
good
mix
of
other
emotions
including
both
positive
and
negative
language.
When
Roberts’
opinion
language
is
normalized
and
compared
with
the
relative
emotional
language
use
in
the
dissents,
we
see
the
following:
Justice
Jackson
tends
to
use
more
relative
emotional
language
than
the
other
justices
and
Chief
Justice
Roberts
uses
the
least
(if
the
total
numbers
are
used,
the
order
from
most
emotional
language
to
least
is
Roberts,
Sotomayor,
and
then
Jackson).
This
shows
how
the
picture
changes
when
moving
from
aggregate
count
data
to
normalized
figures.
With
this
in
mind,
we
can
look
at
cases
listed
in
order
of
aggregate
emotional
language
content
based
on
majority
and
dissenting
opinions:
Not
surprisingly,
the
cases
tend
to
be
some
of
the
more
publicly
salient
of
the
term
starting
with
Trump
v.
U.S.
and
Grants
Pass
and
including
Loper
Brightand
Rahimi
in
the
top
five
for
total
emotional
language
content.
The
normalized
case
ranking
looks
different
based
on
the
cases
with
the
highest
rates
of
emotional
language
used:
While
Trump
v.
U.S.
and
Erlinger
v.
U.S.are
still
at
the
top,
we
see
other
cases
like
Thornell
v.
Jones
and
McIntosh
v.
U.S.also
near
the
top
when
emotional
language
is
normalized
based
on
the
word
counts
of
the
majority
opinions
and
dissents.
Looking
at
the
total
emotional
language
content
(non-normalized)
by
justice
we
get
a
true
sense
of
the
justices
that
used
the
most
emotional
language
last
term.
*
Note:
Roberts’
one
paragraph
dissent
in
Wilkinson
v.
Garland
was
not
included
in
any
of
the
analyses
Justice
Sotomayor
used
the
most
emotional
language
in
her
combined
majority
and
dissenting
opinions
and
Justice
Barrett
used
the
least.
Since
writing
dissenting
opinions
is
up
to
the
discretion
of
the
justices,
I
didn’t
break
this
measure
down
further
based
on
total
number
of
opinions
authored.
This
ordering
looks
somewhat
different
when
the
emotional
language
is
normalized
by
word
counts.
Although
Justice
Sotomayor
stays
on
top
in
both
graphs,
Justices
Jackson,
Barrett,
and
Thomas
all
rise
in
the
ranks
when
the
values
are
normalized.
To
look
a
bit
deeper
into
the
justices’
normalized
values,
the
next
graph
breaks
these
values
down
to
majority
and
separate
opinions:
Justice
Thomas
moves
to
the
front
of
the
majority
opinion
rate
with
Justices
Sotomayor
and
Jackson
trailing
close
behind,
and
Justice
Barrett
moves
to
the
top
of
the
dissent
rate.
Justice
Kagan
stays
towards
the
bottom
in
both
opinion
categories.
Concluding
Thoughts
The
justices
clearly
are
emotional
actors
and
so
Supreme
Court
opinions
are
not
even
nearly
devoid
of
emotional
language.
It
is
also
clear
that
the
justices’
relative
use
of
emotional
language
varies
quite
a
bit,
both
between
cases
and
between
justices.
This
should
be
a
starting
point
of
any
conversation
both
of
whether
the
justices
add
emotion
into
their
opinions,
and
of
whether
case
law
includes
emotional
language
generally.
The
meaning
of
this
language
use
is
much
more
complex.
While
arguments
for
neutral
principles
might
caution
against
the
use
of
emotional
language,
realists
may
say
that
obfuscating
emotional
language
use
will
only
cloud
the
reality
of
Supreme
Court
decision
making.
The
normative
implications
inspire
a
much
deeper
discussion.
Some
will
argue
that
since
emotional
responses
are
typical
when
people,
even
judges,
respond
to
stimuli.
Others
might
say
that
the
more
emotional
an
opinion,
the
more
possibility
there
is
for
subjective
feelings
to
play
larger
roles,
especially
when
this
comes
at
the
expense
of
limiting
doctrines
including
precedent.
Emotional
language
may
also
come
in
response
to
subconscious
or
conscious
biases
and
so
they
may
be
hard
to
spot,
even
for
seasoned
judges.
Coming
full
circle,
we
could
probably
have
inferred
the
likelihood
of
emotional
language
in
Trump
v.
U.S.
before
the
decision
was
released
simply
based
on
the
political
overtones
and
stakes
of
the
case.
The
New
York
Times
article
then
added
details
that
underscored
some
of
the
emotions
involved.
Adam
Feldman
runs
the
litigation
consulting
company
Optimized
Legal
Solutions
LLC.
For
more
information
write
Adam
at [email protected]. Find
him
on
Twitter: @AdamSFeldman.