State Court Influence on US Supreme Court Opinions

Abstract

Despite our understanding that the US Supreme Court influences lower courts in a top-down fashion, we examine whether state courts influence Supreme Court work, namely, its majority opinions. This study of lower court influence on Supreme Court opinion writing investigates whether and when justices borrow language from state court opinions. While our fundamental interest is in whether the writings of state court judges are influential in Supreme Court opinions, we further investigate whether justices’ biases against elected judiciaries and favor for appointed systems play a role here. Our original data set includes Supreme Court cases reviewing state court decisions from 1995 to 2015. Results show that the potential for lower court influence differs for appointed versus elected state court judges, lending valuable insight into the discussion of judicial power and institutional design. Meanwhile, state courts play an important role in the development of law at the Supreme Court.

Lower Court Influence on High Courts: Evidence from the Supreme Court of the United Kingdom

“…12 To create our dependent variable, we utilize BAILII's case history function 13 to access higher and lower court opinion texts. After locating each Supreme Court opinion 14 and the accompanying appellate court decision under review, we convert each opinion into a text format and use WCopyfind 4.1.5 15software which identifies language similaritiesto assess the degree to which the lower court opinion words and phrasing were replicated, or "adopted," in the UK Supreme Court opinion (Corley 2008;Corley, Collins, and Calvin 2011;Bloomfield 2016;Savchak and Bowie 2016;Bowie and Savchak 2019;Bowie and Savchak 2022). 16 Our dependent variable is the percentage of a Supreme Court opinion's language that is borrowed directly from the lower court decision.…”

“…Studies examining judicial opinion content often focus on the practice of language borrowing, where high court judges and justices directly implement language from lower court opinions into their own decisions, thus codifying the language from the lower courts as national precedent (Corley, Collins, and Calvin 2011). There is considerable evidence that higher courts routinely borrow language from lower court opinions because these opinions provide information on the state of the law as it relates to the case at hand, offer persuasive legal arguments, and cover complex issues (Corley, Collins, and Calvin 2011;Savchak and Bowie 2016;Bowie and Savchak 2022). Other work on bottom-up influences reveals that Supreme Court justices ascertain critical information on the applicability and policy consequences of legal rules through implementation patterns within the lower courts (Hansford, Spriggs, and Stenger 2013).…”

“…We first determine the number of words within each appellate opinion and then transform the variable by calculating the natural logarithm of the total number of words. This approach allows us to account for any nonlinearity or variation within the values of the variable (see Randazzo, Waterman, and Fine 2006;Bowie and Savchak 2022). We expect the estimate of this variable to be signed in a positive direction, as it would indicate that justices borrow more language from lengthier opinions compared to those that are less verbose.…”

“…Finally, we control for two key factors at the Court of Appeal level that may shape how much (or little) a justice borrows from the Court of Appeal decision. Prior scholarship demonstrates that writing clarity is an important factor affecting the judicial process, as higher levels of opinion clarity increase the transparency and perceived legitimacy of the ruling at hand (Goelzhauser and Cann 2014;Nelson and Hinkle 2018;Bowie and Savchak 2019;Bowie and Savchak 2022). As such, lower court opinions that are clearly written may be more strongly perceived as rationally grounded decisions, meaning we should see higher rates of borrowing from those opinions.…”

“…Language borrowing speaks directly to influence because, at a minimum, it indicates that the higher court is relying on the lower court's opinion to justify an outcome and is ultimately allowing lower court judges to shape Supreme Court doctrine (Corley, Collins, and Calvin 2011). 1 Nearly all cases that reach the UK Supreme Court have been heard by a lower court, meaning that lower court opinions can be a crucial starting point for the justices to reference when they are tasked with writing their own opinions (Corley, Collins, and Calvin 2011;Hanretty 2020;Bowie and Savchak 2022). 2 Scholars have made significant strides in improving our understanding of how lower court judges affect higher court opinion content in the American context, yet little is known about whether language borrowing is a phenomenon that extends to other judiciaries, such as the United Kingdom.…”