All copying is not created equal: borrowed language in Supreme Court opinions.
Petitioner argues, nevertheless, that Title VII leaves courts with discretion to provide additional protection for tenure review documents. Although petitioner recognizes that Title VII gives the Commission broad "power to seek access to all evidence that may be 'relevant to the charge under investigation'" (Pet. Br. 38), it nevertheless contends that Title VII's subpoena enforcement provisions do not give the Commission an unqualified right to acquire such evidence. See Pet. Br. 38-41. That interpretation is untenable. First, the plain language of Section 709(a) of Title VII, 42 U.S.C.2000e-8(a), states that the Commission "shall ... have access" to relevant evidence; this can only be read as giving the Commission a right to that evidence, not a mere "power to seek" it. (202)
Petitioner argues, nevertheless, that Title VII affirmatively grants courts the discretion to require more than relevance in order to protect tenure-review documents. Although petitioner recognizes that Title VII gives the Commission broad "power to seek access to all evidence that may be 'relevant to the charge under investigation,'" Brief for Petitioner 38 (emphasis added), it contends that Title VII's subpoena enforcement provisions do not give the Commission an unqualified right to acquire such evidence. Id., at 38-41. This interpretation simply cannot be reconciled with the plain language of the text of [section] 2000e8(a), which states that the Commission "shall ... have access" to "relevant" evidence (emphasis added). The provision can be read only as giving the Commission a right to obtain that evidence, not a mere license to seek it. (203)
Title VII anticipates and addresses situations in which an employer may have an interest in the confidentiality of its records. The same Section that gives the Commission access to any evidence relevant to its investigations also makes it "unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding" under the Act. .... Any violation of this provision subjects the Commission's employees to criminal penalties. Ibid. (204)
Congress did address situations in which an employer may have an interest in the confidentiality of its records. The same [section] 2000e-8 which gives the Commission access to any evidence relevant to its investigation also makes it "unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding" under the Act. A violation of this provision subjects the employee to criminal penalties. Ibid. (205)
This deference to the SG's interpretation of the statutory scheme is also evident in C.I.R. v. Keystone Consolidated Industries, Inc. (206) The Keystone opinion uses some of the SG's language, and some similar to it, in interpreting the tax code, and uses the same canons of interpretation. A few examples include:
But even if "sale or exchange" had not had a settled meaning under the ... Code, it would be clear that Section 4975(c)(1)(A) prohibits the transfer of property in satisfaction of a debt. Congress did not merely prohibit a "sale or exchange," it barred "any direct or indirect.... sale or exchange" between employers and the pension plans they sponsor. At the least, the contribution of property in satisfaction of a funding obligation is a type of sale of the property. It is equally surely a form of exchange, since the property is exchanged for diminution of the employer's funding obligation. (207)
Even if this phrase had not possessed a settled meaning, it still would be clear that [section] 4975(c)(1)(A) prohibits the transfer of property in satisfaction of a debt. Congress barred not merely a "sale or exchange." It prohibited something more, namely, "any direct or indirect ... sale or exchange." The contribution of property in satisfaction of a funding obligation is at least both an indirect type of sale and a form of exchange, since the property is exchanged for diminution of the employer's funding obligation. (208)
Congress's goal ... was to bar categorically transactions ... likely to injure pension plans.... The transfer of property to a pension plan in satisfaction of a funding obligation can jeopardize the ability of the plan to pay promised benefits. (209)
Congress' goal was to bar categorically a transaction that was likely to injure the pension plan..... The transfer of encumbered property may jeopardize the ability of the plan to pay promised benefits. (210)
The statutory text at issue--providing that a transfer of encumbered property "shall be treated as" a sale or exchange--supports the ... view that Congress intended Section 4975(f)(3) to expand the scope of the prohibited transaction provision.... Thus, Section 4975(f)(3) amplifies and extends the reach of "sale or exchange" in Section 4975(c)(1) (A) to include contributions of encumbered property that do not satisfy funding obligations. The legislative history confirms that Congress understood Section 4975(f)(3) to enlarge, rather than restrict, the reach of the prohibited transaction provision ... thus, Congress intended Section 4975(f)(3) to provide additional protection, not to limit the protection provided by Section 4975(c)(1)(A) (211)
We feel that by this language Congress intended [section] 4975(f)(3) to expand, not limit, the scope of the prohibited-transaction provision. It extends the reach of "sale or exchange" in [section] 4975(c)(1)(A) to include contributions of encumbered property that do not satisfy funding obligations. See H.R. Conf. Rep. No. 93-1280, p. 307 (1974). Congress intended by [section] 4975(f)(3) to provide additional protection, not to limit the protection already provided by [section] 4975(c)(1)(A). (212)
Also as in Doe Agency, the Keystone Court adopts the SG's language to reject the rationale for the lower court's decision:
The court of appeals interpreted "sale or exchange" in Section 4975(c)(1)(A) contrary to its ordinary, settled meaning ... as a result of its erroneous construction of Section 4975(f)(3). That provision states ... that "[a] transfer [of] real or personal property by a disqualified person to a plan shall be treated as a sale or exchange if the property is subject to a mortgage or similar lien." The court of
appeals ... read it as "implying that unless [property] is encumbered by a mortgage or lien, a transfer of property is not to be treated as if it were a sale or exchange." (213)
We do not agree with the Court of Appeals' conclusion that [section] 4975(f)(3) limits the meaning of "sale or exchange," as that phrase appears in [section] 4975(c)(l)(A). Section 4975(f)(3) states that a transfer of property "by a disqualified person to a plan shall be treated as a sale or exchange if the property is subject to a mortgage or similar lien." The Court of Appeals read this language as implying that unless property "is encumbered by a mortgage or lien, a transfer of property is not to be treated as if it were a sale or exchange." 951 F.2d at 78. (214)
Justice Blackmun's opinion for the Court in Posters N' Things v. United States (215) follows a similar form. The opinion adopts an abundance of language from the SG's brief regarding Congressional intent, the Court's precedent, and the opposing parties' arguments. The SG's brief and the Court's opinion look at Congressional intent similarly:
Congress omitted a factor that would have borne ... directly on the question of subjective intent--the defendant's own statements about his intent. That omission is particularly striking when Section 857 is compared to the Model Drug Paraphernalia Act. The Model Act includes among the relevant factors "[statements by an owner ... concerning [the] use" of the object and "direct or circumstantial evidence of the intent of an owner ... to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act." 8 App., infra, 6a-7a. Congress's omission of both factors in Section 857 indicates that it did not intend to define drug paraphernalia in terms of the subjective intent of the defendant. (216)
Congress did not include among the listed factors a defendant's statements about his intent or other factors directly establishing subjective intent. This omission is significant in light of the fact that the parallel list contained in the ... Model Drug Paraphernalia Act, on which [section] 857 was based, includes among the relevant factors "statements by an owner ... concerning [the object's] use" and "direct or circumstantial evidence of the intent of an owner ... to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act." An objective construction of the definitional provision also finds support in [section] 857(f), which establishes an exemption for items "traditionally intended for use with tobacco products." An item's "traditional" use is not based on the subjective intent of a particular defendant. (217)
In 1988, Congress replaced "primarily" with "traditionally" in order to "clarif[y]" the meaning of the exemption. See Pub. L. No. 100-690, Tit. IV, [section] 6485, 102 Stat. 4384. If Congress had meant to shift from a subjective to an objective concept of intent, it is unlikely that it would have characterized the amendment as merely "clarifying" the law. (218)
In 1988, Congress added the word "traditionally" in place of "primarily" ... in order to "clarif[y]" the meaning of the exemption. Pub. L. 100-690, Tit. VI, [section] 6485, 102 Stat. 4384. Congress' ... merely "clarifying" the law suggests that the original phrase ... was not a reference to the fundamentally different concept of a defendant's subjective intent. (219)
"[T]he failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law." Liparota, 471 U.S. at 426. Instead, "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." United States Gypsum Co., 438 U.S. at 438. Despite this presumption, "courts obviously must follow Congress' intent as to the required level of mental culpability for any particular offense." United States v. Bailey, 444 U.S. 394, 406 (1980). In this instance, however, we do not believe that the language or legislative history of Section 857 demonstrates that Congress intended to dispense with a mens rea requirement. (220)
Neither our conclusion that Congress intended an objective construction of the "primarily intended" language in [section] 857(d), nor the fact that Congress did not include the word "knowingly" in the text of [section] 857, justifies the conclusion that Congress intended to dispense entirely with a scienter requirement. This Court stated in United States v. United States Gypsum Co., 438 U.S. 422, 438 ... (1978): "Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." (221)
The SG's brief and the Posters opinion respond to the arguments raised by petitioner in this way:
Petitioners contend ... that Section 857 is unconstitutionally vague as applied in this case.... Whatever its standing in the abstract, Section 857 is not unconstitutionally vague as applied to petitioners. The void-for-vagueness doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 ... . Many of the items at issue in this case--including bongs, roach clips, and pipes designed for use with illegal drugs--are listed in Section 857(d). There is no plausible basis for arguing that the statute is unconstitutionally vague concerning those items. (222)
Petitioners argue that [section] 857 is unconstitutionally vague as applied to them in this case.... Whatever its status as a general matter, we cannot say that [section] 857 is unconstitutionally vague as applied in this case. First, the list of items in [section] 857(d) constituting per se drug paraphernalia provides individuals and law enforcement officers with relatively clear guidelines as to prohibited conduct. With respect to the listed items, there can be little doubt that the statute is sufficiently determinate to meet constitutional requirements. Many items involved in this case--including bongs, roach clips, and pipes designed for use with illegal drugs--are among the items specifically listed in [section] 857(d). (223)
Petitioner Acty contends ... that she was improperly convicted of aiding and abetting the manufacture and distribution of cocaine, in violation of 21 U.S.C. 841(a)(1).... She asserts ... that ... under the district court's instructions the jury was "required ... to find that the substances were intended for manufacturing with a controlled substance." Petitioner argues that the district court's instructions ... "create[d] 'a presumption that relieve[d] the [government] of its burden of persuasion on an element of the offense,'" in violation of the Due Process Clause of the Fifth Amendment.... Petitioner did not raise that argument in the court of appeals, and that court did not address it. (224)
Petitioner Acty's other contentions are not properly before the Court. First, she argues that she was improperly convicted of aiding and abetting the manufacture and distribution of cocaine because the jury instructions created a "presumption" that certain items of drug paraphernalia "were intended for manufacturing with a controlled substance." ... This argument was neither raised in nor addressed by the Court of Appeals. (225)
In another section of the Posters opinion, the Court establishes the SG's interpretation of "primarily intended" as the governing definition of that statutory phrase:
Finally, our objective construction of the "primarily intended for use" language avoids the creation of an unusual mens rea standard and is consistent with the meaning of similar language in other federal criminal statutes. See 18 U.S.C. 921(a)(17)(B) ("armor piercing ammunition" excludes any projectile that the Secretary of the Treasury finds is "primarily intended" to be used for sporting purposes); 21 U.S.C. 860(d)(2) ("youth center" means a recreational facility "intended primarily for use by persons under 18 years of age"). (226)
Finally, an objective construction of the phrase "primarily intended" is consistent with the natural reading of similar language in definitional provisions of other federal criminal statutes. See 18 U.S.C. [section] 921(a)(17)(B) ("armor piercing ammunition" excludes any projectile that is "primarily intended" to be used for sporting purposes, as found by the Secretary of the Treasury); 21 U.S.C. [section] 860(d)(2) (1988 ed., Supp. V) ("youth center" means a recreational facility "intended primarily for use by persons under 18 years of age"). (227)
2. Non-Blackmun Cases
Justice Blackmun's Lifted opinions for the Court present some of the most elaborate examples of opinions that adopt language from the briefs in all their facets, including legal reasoning. They also represent the majority of Lifted opinions. Other Lifted opinions show greater variation in the material they include from the briefs, but they all tend to take the focal brief as the template for the language in the opinion. Many of these, like the Blackmun opinions, rely on the SG's briefs from beginning to end.
The earliest Lifted relationship in the dataset comes from the 1955 opinion in Steiner v. Mitchell, (228) authored by Chief Justice Warren. This case is atypical both because the legal-reasoning section of the opinion is quite small compared to the discussion of facts and because the amount of overlapping language in the facts section is higher than in any other Lifted opinion and source brief at seventy-one percent. The Court's reliance on the SG's brief is apparent at the outset when the question posed in the opinion is compared to the question in each brief: (229)
Under the provisions of the Fair Labor Standards Act, as amended by the Portal-to-Portal Act, does time spent by petitioner's employees at its battery manufacturing plant in changing from street clothes into work clothes prior to punching the time clock at the beginning of the work day, and in taking shower baths and changing from work clothes to street clothes after punching out the time clock at the end of the work day, constitute compensable "time worked" under the amended Act? (230)
Where workers in a battery plant must make extensive use of dangerously caustic and toxic materials and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and ... to shower in facilities which State law requires their employer to provide, are these "principal," rather than "preliminary" or "postliminary," activities within the meaning of the Portal-to-Portal Act. (231)
The precise question is whether workers in a battery plant must be paid as a part of their "principal" activities for the time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employer to provide, or whether these activities are "preliminary" or "postliminary" within the meaning of the Portal-to Portal Act. (232)
The opinion in Steiner follows the facts as described in the SG's brief and deviates considerably from the facts as conveyed by the petitioner. (233) The facts are often also drawn from the record, but as part of the opinion, they are damaging to the petitioner's contention that the working conditions in the battery plant are not hazardous and do not require the workers to take additional precautions to maintain their safety. The following examples exemplify how the pictures painted by the SG and the Court are quite different from that drawn by the petitioner.
The manufacturing process for storage batteries involves the handling of toxic matter, such as sulphuric acid and lead oxide. This matter damages clothes if it is spilled on them. (234)
All of the ... production employees customarily work with or near the various chemicals used in the plant.... These include lead metal, lead oxide, lead sulphate, lead peroxide, and sulphuric acid.... Some of these are in liquid form, some are in powder form, and some are solid.... In the manufacturing process some of the materials go through various changes.... and give off dangerous fumes.... Some are spilled or dropped and thus become a part of the dust in the air.... In general, the chemicals permeate the entire plant and everything and everyone in it. ... Moreover, "abnormal concentrations of lead have been discovered in the bodies of some of [petitioners'] employees and [petitioners'] insurance doctor has recommended that such employees be segregated from their customary duties".... (235)
All of the production employees, such as those with whom we are here concerned, customarily work with or near the various chemicals used in the plant. These include lead metal, lead oxide, lead sulphate, lead peroxide, and sulphuric acid. Some of these are in liquid form; some are in powder form, and some are solid. In the manufacturing process, some of the materials go through various changes and give off dangerous fumes. Some are spilled or dropped, and thus become a part of the dust in the air. In general, the chemicals permeate the entire plant and everything and everyone in it. ... Abnormal concentrations of lead were discovered in the bodies of some of petitioners' employees, and petitioners' insurance doctor recommended that such employees be segregated from their customary duties. (236)
In another instance the Steiner opinion directly adopts the SG's reasoning concerning the petitioner's treatment of its workers:
Petitioners concededly do not record or pay for the time which their employees spend in clothes changing and showering, which was found to amount to thirty minutes a day (ten minutes in the morning and twenty minutes in the afternoon) for each employee (R. 221).... Petitioners do not challenge the concurrent finding of the courts below that the clothes-changing and showering activities of the battery plant employees (men who work with or near dangerously toxic materials) are indispensable to the performance of productive work and integrally related thereto. See Pet. Br., p. 33. (237)
Petitioners do not record or pay for the time which their employees spend in these activities, which was found to amount to thirty minutes a day, ten minutes in the morning and twenty minutes in the afternoon, for each employee. They do not challenge the concurrent findings of the courts below that the clothes-changing and showering activities of the employees are indispensable to the performance of their productive work and integrally related thereto. (238)
While the opinion in Steiner is unusually fact-intensive, most Lifted opinions, as is suggested by the Blackmun examples, (239) include an even mix of lifted facts and lifted reasoning. Justice Goldberg's opinion for the Court in Tilton v. Missouri Pacific Railroad (240) is more typical of the Lifted type. Its language parallels the reasoning found in the SG's brief as well as the SG's construction of the facts. The certainty present in the petitioner's argument makes its way into the Court's opinion, as is apparent in the following:
There is no room for doubt then, that, had Tilton, Beck and McClearn remained continuously on the job, they would have been able to complete the work period and qualify as journeymen in advance of those who "jumped" them in seniority during their absence. Each was entitled, under the agreement, to do carman's work ahead of any man upgraded after him. It was only because of petitioners' military service that men upgraded after them were able to work more days as carmen and to qualify as journeymen before them (Tilt. R. Stip. 29). But for their absence, petitioners would have qualified as journeymen carmen and achieved the seniority dates they now claim. (241)
There is no room for doubt in this case that ... had petitioners remained continuously on the job during the period of their military service, they would have completed the work period and qualified as journeymen in advance of those who passed them in seniority during their absence. Each petitioner was entitled, under the labor agreement, to do carman's work ahead of any upgraded after him. It was only because of petitioners' military service that men upgraded after them were able to work more days as provisional carmen and to qualify as journeymen before them. But for their absence, petitioners would have qualified as journeymen carmen and achieved the seniority dates they now claim. (242)
Shared phrases such as "there is no room for doubt" indicate the parallel strength and confidence of the arguments in the SG's brief and the statements in the Court's opinion. In other examples, the opinion continues to validate the SG's reasoning as it takes contentions made in the brief as its own wording. As in Steiner, these statements in the opinion make the Tilton Court's position on the issues, and in particular its agreement with the SG's logic, abundantly clear:
For it was apparent that McKinney could never have predicted "with any degree of certainty," when he left for service, that (1) a group 1 position would fall vacant in his absence; (2) that he would elect to bid for it; (3) that he would be in adequate health to bid for it; and (4) that he would not have already lost his lower position because of unsatisfactory performance.... A returning veteran cannot claim a promotion that depends solely upon completing a prerequisite period of employment training unless he first works that period but, upon completion of that period of training, he can insist upon a seniority date in the higher position which reflects the delay in completing the requisite period of training caused by military service. (243)
It was apparent that McKinney, when he left for service, could not have predicted with absolute certainty that a group position would fall vacant in his absence; that he would be in adequate health to bid for it; that he would elect to bid for it; and that he would not have lost his lower position because of unsatisfactory performance.... [A] returning veteran cannot claim a promotion that depends solely upon satisfactory completion of a prerequisite period of employment training unless he first works that period. But upon satisfactorily completing that period, as petitioners did here, he can insist upon a seniority date reflecting the delay caused by military service. (244)
These samples of parallel construction in the SG's brief and in the opinion in Tilton are similar to those in Steiner, depicting language that leaves little doubt regarding the position of the litigant or of the Court. They also show that the Tilton Court adopted the SG's reasoning when ruling in the government's favor.
Chief Justice Warren's second Lifted opinion for the Court, Foti v. INS, (245) adopts more reasoning similar to that in the SG's brief even than appeared in Steiner. In particular, the Foti Court's reasoning is similar in construing the relevant legislative language and the practice of how to enforce it.
From the beginning, by regulations having the force and effect of law, it has been exercised as an integral part of the administrative proceedings which have led to the issuance of a final deportation order. (246)
Thus, the administrative discretion to grant a suspension of deportation has historically been consistently exercised as an integral part of the proceedings which have led to the issuance of a final deportation order. (247)
The fundamental purpose of Section 106(a), its legislative history discloses, was to abbreviate the process of judicial review of deportation orders in order to frustrate certain practices, which had come to Congress's attention, whereby persons subject to deportation were forestalling enforcement by dilatory tactics in the courts. (248)
The fundamental purpose behind [section] 106(a) was to abbreviate the process of judicial review of deportation orders in order to frustrate certain practices which had come to the attention of Congress, whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts. (249)
The last-mentioned consideration also refutes the majority's suggestion that it is "incredible" that Congress meant to burden courts of appeals with review of orders denying voluntary departure. (250)
And the suggestion of the court below that it is "incredible" that Congress meant to burden the Courts of Appeals with review of all orders denying discretionary relief in deportation cases is unconvincing. (251)
Like the Foti and Tilton opinions, Justice Marshall's opinion for the Court in Hodel v. Indiana (252) follows the language and reasoning of the SG's brief. Significant to this case are the instances in which the opinion and the brief both discuss the importance of giving deference to Congressional choices:
A court may not substitute its judgment for that of Congress merely because it believes that Congress was "unwise in not choosing a means more precisely related to its primary purpose." (253)
"This court will certainly not substitute its judgment for that of Congress unless the relation of the subject to interstate commerce and its effect upon it are clearly non-existent. (254)
All of the provisions invalidated by the district court are reasonably calculated to further the legitimate congressional goals of preserving the productive capacity of mined lands, minimizing the adverse environmental consequences that can result from surface mining or inadequate reclamation of mined lands, and protecting the public from health and safety hazards that may be created by surface mining. (255)
All the provisions invalidated by the court below are reasonably calculated to further these legitimate goals. For example, the approximate-original-contour requirement in [section] 515(b)(5) is designed to avoid the environmental and other harm that may result from unreclaimed or improperly restored mining cuts. (256)
That is surely a rational distinction for Congress to draw, and the fact that a particular state has more of one kind of mining operation than another does not establish discrimination in violation of the Due Process Clause of the Fifth Amendment. (257)
Congress acted rationally in drawing these distinctions, and the fact that a particular State has more of one kind of mining operation than another does not establish impermissible discrimination under the Fifth Amendment's Due Process Clause. (258)
Moreover, Congress' determination that federal intervention is necessary in this area was based in part on a desire to ensure that mine operators in states adhering to high performance and reclamation standards would not be disadvantaged in competition with their counterparts in states with less rigorous regulatory programs. See 30 U.S.C. (Supp. I) 1201(g). The statutory provisions overturned by the district court advance these legitimate goals of Congress and thus are rationally related to the protection of commerce from the adverse impact of surface mining operations. (259)
[T]he Act reflects the congressional goal of protecting mine operators in States adhering to high performance and reclamation standards from disadvantageous competition with operators in States with less rigorous regulatory programs. See 30 U. S. C. [section] 1201 (g) (1976 ed., Supp. III). The statutory provisions invalidated by the District Court advance these legitimate goals, and we conclude that Congress acted reasonably in adopting the regulatory scheme contained in the Act. (260)
As is the case with several other Lifted opinions, the opinion in Hodel uses the SG's reasoning for rejecting the opposing parties' arguments:
Moreover, even assuming arguendo that the provisions in question impose a greater burden on mine operators in midwestern states, that is no basis for striking them down as unconstitutional. A claim of arbitrariness or irrationality cannot be founded merely upon a statute's lack of uniform geographic impact. (261)
More important, even were appellees correct that the challenged provisions impose a greater burden on mine operators in the Midwest, that is no basis for finding the provisions unconstitutional. A claim of arbitrariness cannot rest solely on a statute's lack of uniform geographic impact. Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 616-619 ... (1950). (262)
As in Virginia Surface Mining, plaintiffs' taking claims did not focus on any particular properties to which the challenged provisions have been applied, and the district court did not base its ruling on the denial of a surface mining permit for specific prime farmland operations proposed by plaintiffs. (263)
In this case as in Virginia Surface Mining, appellees' takings claims do not focus on any particular properties to which the challenged provisions have been applied. Similarly, the District Court's ruling did not pertain to the taking of a particular piece of property or the denial of a mining permit for specific prime farmland operations proposed by appellees. (264)
[P]laintiffs here, like their counterparts in Virginia Surface Mining, have made no showing that they were ever assessed civil penalties ..., much less that the statutory prepayment requirement was ever applied to them or that it caused them injury. (265)
[L]ike their counterparts in Virginia Surface Mining, appellees have made no showing that they were ever assessed civil penalties ..., much less that the statutory prepayment requirement was ever applied to them or caused them any injury. (266)
The links between the opinion and the SG's brief in Hodel--from the interpretation of Congressional purpose in enacting a particular statute through the rejection of the opposing parties' arguments--are also present in Justice Stewart's opinion for the Court in Lehman v. Nakshian, (267) In reviewing the purpose behind the Age Discrimination in Employment Act, the Lehman Court shares the SG's views:
The general experience has been that when Congress waives the sovereign immunity of the United States, it does not provide for trial by jury.... [J]ury trials historically have not been available in the Court of Claims in the broad range of cases within its jurisdiction under 28 U.S.C. [section] 1491--i.e., all claims against the United States "founded either upon the Constitution, or any Act of Congress." (268)
When Congress has waived the sovereign immunity of the United States, it has almost always conditioned that waiver upon a plaintiffs relinquishing any claim to a jury trial." (269)
In any event, Rule 38(a) of the Federal Rules of Civil Procedure provides that the right to trial by jury "as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate" (emphasis added). This language certainly does not state a general rule that jury trials are to be presumed whenever Congress provides for cases to be brought in the district court. To the contrary, Rule 38(a) renders it necessary to look elsewhere for a specific, affirmative grant of the right where, as here, the Seventh Amendment does not apply. (270)
Moreover, Rule 38(a) of the Federal Rules of Civil Procedure provides that the right to a jury trial "as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate" (emphasis added). This language hardly states a general rule that jury trials are to be presumed whenever Congress provides for cases to be brought in federal district courts. Indeed, Rule 38(a) requires an affirmative statutory grant of the right where, as in this case, the Seventh Amendment does not apply. (271)
As is evident, neither the provision for cases under Section 15(c) to be brought in district court nor the use of the word "legal" in that section can be thought to manifest a congressional intent that the plaintiff in an ADEA action against the federal government have a right to trial by jury. (272)
Neither the provision for federal employer cases to be brought in district courts rather than the Court of Claims, nor the use of the word "legal" in that section, evinces a congressional intent that ADEA plaintiffs who proceed to trial against the Federal Government may do so before a jury. (273)
In its analysis of whether jury trials should be allowed in cases like Lehman, the Court follows the SG's reasoning regarding the dearth of evidence presented by the respondent:
There is nothing in the legislative history to indicate that Congress did not mean what it said in providing for jury trials in cases under Section 7(c) but not in cases against the federal government under Section 15(c). Indeed, the legislative history contains not a single reference to the issue of jury trials in federal sector cases, and any inferences that may be drawn from the legislative history on this question cut against the availability of jury trials.... [A]ny inferences that may be drawn from the legislative history cut strongly against respondent's position. (274)
The respondent cannot point to a single reference in the legislative history to the subject of jury trials in cases brought against the Federal Government. There is none. And there is nothing to indicate that Congress did not mean what it plainly indicated when it expressly provided for jury trials in [section] 7(c) cases but not in [section] 15(c) cases. In fact, the few inferences that may be drawn from the legislative history are inconsistent with the respondent's position. (275)
Writing for the Court in Carter v. Kentucky, (276) another case dealing with defendants' rights, Justice Stewart utilized the petitioner's constitutional analysis--advanced by a team of public advocates employed by the Commonwealth of Kentucky--for requiring specific jury instructions under the Fifth Amendment:
There is no doubt that the Fifth Amendment privilege, the presumption of innocence, and the burden of proof are closely aligned.... However, to say that these principles are closely aligned is not to say that they do not serve distinctive functions. Petitioner's jury would have certainly derived "significant additional guidance" from an instruction that "no inference" should be drawn from his failure to testify. Taylor v. Kentucky, 436 U.S. at 484. (277)
Without question, the Fifth Amendment privilege and the presumption of innocence are closely aligned. But these principles serve different functions, and we cannot say that the jury would not have derived "significant additional guidance," Taylor v. Kentucky, 436 U.S. 478, 484 ..., from the instruction requested. (278)
This passage demonstrates that the Carter opinion shares the strength of the argument made by petitioner's counsel with phrases like "no doubt" in the petitioner's brief and "[w]ithout question" in the opinion that leave little room for alternative interpretations of the Constitution's language.
Chief Justice Burger's opinion for the Court in United States v. One Assortment of 89 Firearms (279) has a similar tone of certainty in its adoption of language from the SG's brief, especially in the Court's statutory analysis regarding whether Congress intended for the possibility of forfeiture proceedings after a gun owner is acquitted of criminal charges:
Congress' intent that Section 924(d) be regarded as a civil rather than a criminal penalty is most clearly evidenced, however, by the procedural mechanisms it established for enforcing forfeitures under the statute. Section 924(d) does not prescribe the steps to be followed in effectuating a forfeiture, but rather incorporates by reference the procedures of the Internal Revenue Code of 1954. The Internal Revenue Code provides that proceedings to enforce forfeitures "shall be in the nature of a proceeding in rem in the United States District Court for the district where such seizure is made" (26 U.S.C. 7323). As outlined above, in rem actions are, by their very nature, civil proceedings, with jurisdiction dependent upon seizure of a physical object, in contrast with the in personam nature of criminal actions. See Calero-Toledo, 416 U.S. at 684. (280)
Applying the first prong of the Ward test to the facts of the instant case, we conclude that Congress designed forfeiture under [section] 924(d) as a remedial civil sanction. Congress' intent in this regard is most clearly demonstrated by the procedural mechanisms it established for enforcing forfeitures under the statute. Section 924(d) does not prescribe the steps to be followed in effectuating a forfeiture, but rather incorporates by reference the procedures of the Internal Revenue Code of 1954 (Code), 26 U. S. C. [section] 7321-7328. The Code in turn provides that an action to enforce a forfeiture "shall be in the nature of a proceeding in rem in the United States District Court for the district where such seizure is made." 26 U. S. C. [section] 7323. In contrast to the in personam nature of criminal actions, actions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 684 ... (1974). (281)
In addition to the in rem nature of the action, the Internal Revenue Code provides a summary, administrative proceeding for forfeiture of seized goods valued at $2,500 or less. See 26 U.S.C. 7325 ... That Congress provided a distinctly civil procedure for [forfeitures under 18 U.S.C. 924  (d)] indicates clearly that it intended a civil, not a criminal, sanction." Helvering, 303 U.S. at 402. (282)
In addition to establishing the in rem nature of the action, the Code authorizes a summary administrative proceeding for forfeiture of items valued at $2,500 or less.... See 26 U.S.C. [section] 7325. By creating such distinctly civil procedures for forfeitures under [section] 924(d), Congress has "indicate[d] clearly that it intended a civil, not a criminal, sanction." Helvering v. Mitchell, supra, 303 U.S., at 402. (283)
When Congress enacted the 1968 gun control legislation, "it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest." Huddleston v. United States, 415 U.S. 814, 824 (1974).... The Gun Control Act of 1968, in particular, was designed to "control the indiscriminate flow" of firearms across state borders and to "assist and encourage States and local communities to adopt and enforce stricter gun control laws." H.R. Rep. No. 1577, 90th Cong., 2d Sess. 8 (1968).... Section 924(d) plays an important role in furthering the "broad prophylactic purpose" of the 1968 gun control legislation (Dickerson v. New Banner Institute, supra, slip op. 15) by eliminating stocks of firearms that have been used or intended for use outside regulated channels of commerce. (284)
In enacting the 1968 gun control legislation, Congress "was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest." Huddleston v. United States, 415 U.S. 814, 824 ... (1974). Accordingly, Congress sought to "control the indiscriminate flow" of firearms and to "assist and encourage States and local communities to adopt and enforce stricter gun control laws." H. R. Rep. No. 1577, 90th Cong., 2d Sess., 8 (1968). Section 924(d) plays an important role in furthering the prophylactic purposes of the 1968 gun control legislation by discouraging unregulated commerce in firearms and by removing from circulation firearms that have been used or intended for use outside regulated channels of commerce." (285)
By sharing the SG's reasoning in 89 Firearms, the Court shows its regard for the SG's interpretation of Congressional intent and purpose to such a degree that it is willing to incorporate many aspects of the SG's argument wholesale into the opinion. This, however, is not an anomaly in this sort of case. Lifted opinions, almost without exception, convey the strength of the Court's faith in the SG's approach. (286) On a separate level, though, it also shows great deference on the part of the Court to the SG's contentions. The SG has insight into the inner workings of the government not available to other parties, but even an insider with special knowledge can be fallible. Unfortunately, comparisons of briefs and opinions cannot provide evidence of the Court's level of scrutiny into the SG's contentions.
IV. CONCLUSION: MAKING SENSE OF THE RELATIONSHIP BETWEEN MERITS BRIEFS AND SUPREME COURT OPINIONS
These examples present a slice of the relationship between Supreme Court briefs and opinions. They highlight cases in which the Court has borrowed a large amount of substantive language from merits briefs. While there has been prior scholarship demonstrating that Supreme Court opinions borrow language from briefs, (287) the extent of this borrowing at the individual-case level is uncharted territory. The cases discussed here illuminate important factors regarding the relationship between briefs and opinions in cases that include high levels of overlapping language. Yet these comparisons between briefs and opinions leave us with unanswered questions.
The comparisons drawn from these cases provide further confirmation that repeat players--the OSG in particular--have strong relationships with the Court that makes this extent of language sharing possible. (288) They also help differentiate the types of impact a brief can have on an opinion. There are clear differences between cases in which the opinions share citations and quoted language with the briefs, and cases in which opinions share language that was original with the briefs. The former cases present examples of briefs that were likely influential to the extent that they focused the Court's attention on particular precedent, on specific places in the record, and on relevant statutes, all intended to assist the Court in its decision making. But the latter--the Lifted relationships that are the focus of this article--present puzzles due not only to the extent of the language shared, but also due to the content of the shared language.
How deeply should we read into the borrowed language in Lifted opinions? If we dig into other cases and probe the relationships between briefs and opinions, there are almost assuredly more examples of this type of language sharing, potentially at levels that approximate those in the cases covered in this article. There are likely even more cases in which minor editing changed the phrasing so that language does not align perfectly between brief and opinion, but in which high levels of shared language predominate.
A few of the implications from relationships predicated on language lifting bear consideration. That Supreme Court opinions share language with briefs itself is not an original concept. There are also many sources that the Justices or their clerks would have located without the assistance of briefs, so in some cases it is mere happenstance that the language is shared. Judges also often want briefs to organize and synthesize the information in case records and information relevant to judicial decision of the issues raised in them, (289) so they may actively seek specific language in the briefs before them.
The unattributed shared language, however, is not so readily explained by well-organized and persuasive briefs. Opinions can and do cite to briefs, just as they cite other sources of law, analysis, and information. In Russello for instance, the opinion cites to the petitioner's brief when it says that
Petitioner himself has not attempted to define the term "interest" as used in [section] 1963(a)(1). He insists, however, that the term does not reach money or profits because, he says: 'Interest,' by definition, includes of necessity an interest in something.' Brief for Petitioner 9." (290)
Similarly in National Bank of Commerce, the Court cites to the respondent's brief, stating that
[c]ommon sense dictates that a right to withdraw qualifies as a right to property for purposes of [section][section] 6331 and 6332. In a levy proceeding, the IRS '"steps into the taxpayer's shoes,'" United States v. Rodgers, 461 U. S., at 691, n. 16, ... quoting 4 Bittker, [paragraph] 111.5.4, at 111-102; M. Saltzman, IRS Practice and Procedure f 14.08, [paragraph] 14-32 (1981); Brief for Respondent 8. (291)
These examples show that even in Lifted opinions, the Court is willing to cite to the briefs in circumstances in which the brief informs the opinion writer's choice of language.
In the bulk of the Lifted relationships identified in this article, however, the Court does not cite sources for its choices of language. Yet the extent of shared language in these cases, and the Justices' and clerks' access to the briefs, make the likely source of the language clear. (292) This lack of attribution raises two concerns. The first has to do with the trustworthiness or credibility of the source: How are we to know that the shared language in the opinion was lifted from a brief written by a reputable source? The second has to do with the normative value that we place on courts' citing to the sources they use: When there is a clear indication that the language lifted into the opinion did not originate with either the Justice writing for the Court or an obvious third-party source (a constitutional provision, a statute, a regulation, or an official comment, for instance, or perhaps a law-review article known in the relevant field), shouldn't we expect the Justice writing for the Court to make that clear?
The trustworthiness quandary may be diminished because of the source of language in these cases. The relationship between the SG and the Court is predicated on trust. (293) This is evident from the numerous times the Court has invited the SG to file amicus briefs in cases in which the government is not a party. (294) This trust and the reasons behind it might allay concerns about the source of the shared language. If there is a repeat litigator in the Court who is expected to present accurate information and who is held to a lofty standard, that litigator is the government's attorney--the SG. Nonetheless, the SG is also an advocate who makes arguments to win cases. Furthermore, the government may have an agenda in a case that does not coincide with the best interest of justice or of the rule of law. If the SG frames arguments to win cases, then the language used may be stronger or more argumentative than we would expect from an agnostic party or from the Court itself.
Although the SG's argument and statements of fact, or those of any other similarly situated litigator, may be accurate, the level of accuracy expected from these parties does not parallel that expected from the Court. Thus, there may be certain professional and societal expectations of due diligence in checking the law and the facts on the part of the Justices and the clerks that is not equally expected from others. This is not to say that such due diligence does not occur in circumstances with unattributed language sharing; it is only to say that the lack of attribution raises questions about the level of due diligence performed. (295)
The normative question of when a citation in a Supreme Court opinion is proper or expected is primarily untapped. (296) Yet because it sits at the apex of the judicial hierarchy, the Supreme Court and its opinions are not reviewed by other judicial bodies that could fashion norms and expectations for this practice. We should in consequence examine the practice more closely. Further research might demonstrate that there are reasons why the Justices may want to provide citations when there are clear sources--reasons including the potential positive effect that those citations could have on perceptions of the Court's institutional legitimacy. (297)
Further research into the possibility that large-scale language borrowing is idiosyncratic to particular Justices might also be productive. Justice Blackmun authored more than half of the Lifted opinions revealed by my research. (298) This may indicate that he, more than other Justices, was willing to directly adopt the language of the briefs. (299) Still, many other Justices in the time period of the study authored Lifted opinions, and if the word-number threshold for Lifted opinions was loosened, this number would grow considerably.
As one team of commentators aptly wrote, "There is much to be learned from studies that compare a judicial opinion with the briefs and trial transcripts and other materials on which the judge based--or purported or was expected to base--his opinion." (300) Awareness of the practice of large-scale language borrowing may help bring clarity to this part of the process of opinion construction. Still, the rules for drafting opinions when they are primarily based on contentions made in merits briefs are unscripted. Supreme Court opinion writing is a unique enterprise that may deserve deference not afforded to other types of writing. By removing the mystery that obscures this part of the opinion-construction process, however, we may begin to develop expectations for the role that briefs should play in it. And we may also begin to assess the significance, if any, that we place on attribution to briefs when opinions adopt their substantive language.
(1.) See, e.g., Charles Caleb Colton, Lacon: or, many things in few words; Addressed to Those Who Think [section] CCXVII, 114 (1824) (asserting that "[i]mitation is the sincerest of flattery"). The sentiment has been expressed elsewhere, of course, but Colton's is a relatively early formulation.
(2.) See, e.g., Todd C. Peppers & Artemus Ward, In Chambers: Stories of Supreme Court Law Clerks and Their Justices (2012); David L. Weiden & Artemus Ward, Sorcerers' Apprentices: 100 Years of Law Clerks at the united States Supreme Court 206 (2006) (indicating that Justice Stewart might ask a clerk to "'[w]rite an opinion along the lines of the United States brief' or 'the petitioner's brief"); Karl N. Llewellyn, A Lecture on Appellate Advocacy, 29 U. chi. L. Rev. 627, 638 (1962) (declaring that "your brief ought to ... offer the court something that it can lift, verbatim, into the opinion taking care of all prior authority, phrasing the whole satisfactorily, and applying it to the case in hand").
(3.) See e.g. Adam Liptak, Clarence Thomas. A Supreme Court Justice of Few Words, Some of Them Others', N.Y. TIMES, August 28, 2015, at All (questioning whether language overlap between merits briefs and Justice Thomas's opinions rises to a level of "cribbing").
(4.) See Bob Woodward & Scorr Armstrong, The Brethren: Inside the supreme court 34-35 (1979) (discussing the secrecy involved in the interactions between Supreme Court Justices and clerks in the decisionmaking process).
(5.) Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 86 MlSS. L.J. -- (2017) (forthcoming). An unedited version of this article is available at http://ssrn.com/ abstract=2574451.
(6.) Surprisingly, even these opinions including large sections of uncited language that overlaps with the merits briefs are not wholly devoid of citations to the briefs, which I elaborate on in the conclusion.
(7.) For instance, some might view overlapping language in the Court's statements of facts as inconsequential, but view overlapping language in the Court's assessment of the law as more worthy of attribution if unoriginal. Even with cited source material, there is often strong evidence of the impact of briefs on opinions through the sharing of citations to less-common references such as treatises and law reviews, as well as sharing of multiple citations appearing in briefs as parts of string citations.
(8.) Although in Mapp v. Ohio, 367 U.S. 643 (1961), the Court broadly held that evidence obtained in violation of the Fourth Amendment should be excluded from evidence at trial, subsequent cases either chipped away at this holding or added teeth to it. See, e.g., United States v. Leon, 468 U.S. 897 (1984) (creating a "good faith" exception to the exclusionary rule); INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (holding that subject's identity and body are not suppressible evidence under the exclusionary rule); Camera v. Mun. Ct., 387 U.S. 523 (1967) (holding that housing inspectors need a warrant to enter and search an apartment building); Schmerber v. Cal., 384 U.S. 757 (1966) (allowing physical evidence derived from a blood sample taken without the subject's consent into evidence at trial). The various trajectories of the exclusionary rule are the focus of much scholarly debate and analysis. See, e.g., Andrew E. Taslitz, The Expressive Fourth Amendment: Rethinking the Good Faith Exception to the Exclusionary Rule, 76 MISS. L.J. 483 (2006) (analyzing the lack of clarity surrounding the good-faith exception to the exclusionary rule); David A. Moran, The End of the Exclusionary Rule, Among Other Things: The Roberts Court Takes on the Fourth Amendment, 2005 cato s. ct. rev. 283 (discussing the ways in which the Court's 2005 Fourth Amendment cases chip away at the exclusionary rule); Stephen E. Hessler, Note, Establishing Inevitability Without Active Pursuit: Defining the Inevitable Discovery Exception to the Fourth Amendment Exclusionary Rule, 99 mich. L. rev. 238 (2000) (examining the lack of clarity surrounding the reach of the exclusionary rule); James L. Kainen, The Impeachment Exception to the Exclusionary Rules: Policies, Principles, and Politics, 44 stanford L. Rev. 1301 (1992) (looking at use of illegally obtained evidence to impeach a witness at trial).
(9.) Bryan A. Garner, Justice Antonin Scalia, 13 SCRIBES J. LEGAL WRITING 51, 54 (2010).
(10.) Bryan A. Garner, Justice Anthony M. Kennedy, 13 scribes J. legal writing 79, 97 (2010).
(11.) See, e.g., Howard Gillman, The Court as an Idea, Not a Building (or a Game): Interpretative Institutionalism and the Analysis of Supreme Court Decision-Making, in Supreme Court Decision-Making: New Institutionalist Approaches 65, 80 (Cornell W. Clayton & Howard Gillman eds. 1999) ("There is evidence that most justices act in accordance with the Court's formal responsibility to decide actual legal disputes based on their best understanding of the law."); Gordon Silverstein, Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics (2009) (noting that the way in which judges reason through their decisions in prior cases constrains judges' later decisions); Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 AM. political sci. Rev. 305 (2002) (looking at law's influence--in contrast to personal political ideologies' influence--on Supreme Court Justices because it operates as a means of establishing specific case factors as relevant or setting levels of scrutiny); Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 Iowa L. Rev. 601 (2001) (articulating a theory of the historic course of decisions as a shaper of subsequent outcomes).
(12.) See Lief H. Carter & Thomas Frederick Burke, Reason in Law (2005) (utilizing "logic of the triad" framing to explain judicial legitimacy). For background on the framework of the "logic of the triad" and its application to legal institutions see generally Martin M. Shapiro, Courts, A Comparative and Political Analysis (1981), and Alec Stone Sweet, Judicialization and the Construction of Governance, 32 Comparative Political Studies 147 (1999).
(13.) See Hathaway, supra note 11.
(14.) Of course, the Court uses lower court opinions, amicus curiae briefs, and original research in the preparation of its opinions as well. See, e.g., Paul M. Collins, Jr., Pamela C. Corley & Jesse Hamner, The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content, 49 L. & soc'y Rev. 917 (2015); Pamela C. Corley, Paul M. Collins & Bryan Calvin, Lower Court Influence on U.S. Supreme Court Opinion Content, 73 J. politics 31 (2011); Todd C. Peppers & Christopher Zorn, Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 Depaul L. Rev. 51 (2008). While I do not exclude the possibility that the merits brief and the opinion both derived language from one of these common sources, the extent of the relationships between individual merits briefs and the Court's opinions that will be shown below corroborates the direct influence of the briefs.
(15.) E. Barrett Prettyman, Some Observations Concerning Appellate Advocacy, 39 Va. L. REV. 285, 290-91 (1953) (describing utility of briefs for judges).
(16.) Mark R. Kravitz, Written and Oral Persuasion in the United States Courts: A District Judge's Perspective on their History, Function, and Future, 10 J. APP. PRAC. & PROCESS 247, 261-62 (2009) (characterizing the brief as "a superior and more efficient method of conveying detailed information to a judge," and noting that "it is always handy for the judge to have the written submission, and all of its points and authorities, at hand ... because the judge need not expend great effort in capturing and storing an argument to memory," which allows the judge to "expend more energy on understanding it and assessing its persuasiveness").
(17.) William H. Rehnquist, From Webster to Word-Processing: The Ascendance of the Appellate Brief, 1 J. App. PRAC. & PROCESS 1, 4 (1999); see also Richard A. Posner, Convincing a Federal Court of Appeals, 25 Litig. 3, 3 (1999) (explaining that an effective brief is self-contained, so that the judge does not need to consult other sources in order to understand what is at issue); Albert Tate, The Art of Brief Writing: What a Judge Wants to Read, 4 Litig. 11, 13 (1978) (discussing the brief as an organization tool or "judge's companion" useful "from before the oral argument until the rehearing is denied").
(18.) See, e.g., Richard A. Posner, Cardozo: A Study in Reputation 111 (1990) (explaining that "[j]udges' opinions do not acknowledge the borrowing of ideas, even language, from the parties' briefs, so the evaluation of a judge's creativity requires comparison between the opinion and the briefs in each case"); see also Lee Epstein & Joseph Fiske Kobylka, The Supreme Court and Legal Change: Abortion and the death penalty 113 (1992) (stating that in the opinion for Gregg v. Ga., 428 U.S. 153 (1976), the Justices "borrowed heavily" from Robert Bork's amicus brief).
(19.) The percentage is based on the amount of shared language relative to the total opinion, not to the total brief.
(20.) For example, it would not pick up on the instances in which Justice Cardozo used briefs' language as a starting point, but changed the actual words for his opinions. Posner supra note 18, at 111-12 (comparing Justice Cardozo's graceful language in one opinion with the stilted language in an amicus brief that appears to have been its inspiration, but noting that Cardozo opinions actually "owe little even those briefs that are excellent"). In this sense software that measures language similarity is generally under-inclusive of the actual relationship between the language in briefs and opinions. The software I use--WCopyfind, see infra note 21 and accompanying text--has a parameter setting for the percentage of phrases that must match, however, allowing for some flexibility in locating overlapping language.
(21.) Lou Bloomfield, Software, WCopyfind, THE PLAGIARISM RESOURCE SITE (n.d.), http://plagiarism.bloomfieldmedia.com/wordpress/software/wcopyfind.
(22.) See, e.g., Pamela C. Corley, The Supreme Court and Opinion Content: The Influence of Parties' Briefs, 61 political research Q. 468 (2008); see also Ryan C. Black & Ryan J. Owens, The Solicitor General and the United States Supreme Court (2012); Paul M. Collins, Jr., Pamela C. Corley & Jesse Hamner, Me Too? An Investigation of Repetition in U.S. Supreme Court Amicus Curiae Briefs, 97 judicature 228 (Mar./Apr. 2014); Matthew Eshbaugh-Soha, Presidential Influence of the News Media: The Case of the Press Conference, 30 political COMM. 548 (2013); Justin Grimmer, A Bayesian Hierarchical Topic Model for Political Texts: Measuring Expressed Agendas in Senate Press Releases, 18 political analysis 1 (2010).
(23.) __ U.S. __, 134 S. Ct. 1158, 1170(2014).
(24.) Id. At 1171.
(25.) Brief for Respondent at 41, Lawson v. FMR, 2013 WL 5441390 (U.S. Sept. 30, 2013) (No. 12-3).
(26.) Lawson, 134 S. Ct. at 1161.
(27.) See Brief for Petitioner at 8, Lawson v. FMR, 2013 WL 3972434 (U.S. July 31, 2013) (No. 12-3).
(28.) 456 U.S. 742 (1982)
(29.) Id. at 745.
(30.) Brief for Appellants at 2, FERC v. Mississippi, 1981 WL 390123 (U.S. Aug. 27, 1981) (No. 80-1749) [hereinafter FERC Brief],
(31.) In this and all two-column comparisons in this article, the brief is on the left and the opinion is on the right.
(32.) FERC Brief, supra note 30, at 2-3.
(33.) FERC, 456 U.S. at 745-46.
(34.) Id. at 751 (emphasis added to highlight language not shared between brief and opinion).
(35.) Id. at 758 (emphasis added to highlight language not shared between brief and opinion).
(36.) FERC Brief, supra note 30, at 24.
(37.) FERC, 456 U.S. at 751.
(38.) See generally David J. Garrow, The Lowest Form of Animal Life? 84 CORNELL L. REV. 855 (1999) (reviewing books that look at clerks' lead roles in drafting opinions).
(39.) I use Washington University's well-known Supreme Court Database. Spaeth et. al., Supreme Court Database, WASH. UNIV. L. (2014), http://www.supremecourtdatabase.org.
(40.) This article does not delve into causal mechanisms. The factors linking cases merely show correlations that may help generate a deeper causal understanding of the role that briefs play in influencing opinion language.
(41.) For empirical results supporting this correlate, see Feldman, supra note 5. For empirical support of the SG's success before the Supreme Court from multiple dimensions including shared language with the Court's opinions, see generally Black and Owens, supra note 22, and see Corley, supra note 22, at 476 (showing that the Court shared more language with the Solicitor General's briefs than with those of other experienced members of the Supreme Court bar for the 2002-2004 terms).
(42.) See e.g. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, Law & soc'y Rev. 95, 99 n.9 (1974) (referring, in the course of creating a typology to estimate and explain the advantage of "repeat players" in litigation, to SG's establishment of trusting relationship at Supreme Court).
(43.) I used a multi-methods approach to help locate these cases. See Nicholas Weller & Jeb Barnes, Finding Pathways: Mixed-Method Research for Studying Causal Mechanisms (2014).
(44.) This is underscored by the fact that the length of opinions has generally grown in recent years. See, e.g., Ryan C. Black & James F. Spriggs, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 HOUS. L. REV. 621 (2008).
(45.) 384 U.S. 195 (1966).
(46.) This is a Common Source opinion because, although the percentage overlap is high, the number of overlapping words is below the 1,000 word threshold. See Table 1, supra page 33, and accompanying text.
(47.) 310 U.S. 296(1940).
(48.) Ashton, 384 U.S. at 199 (quoting Cantwell, 310 U.S. at 308); Brief for Petitioner at 24, Ashton v. Kentucky, 1966 WL 115462 (U.S. Mar 14, 1966) (No. 619) (same) [hereinafter Ashton Brief].
(49.) Ashton, 384 at 199 (quoting Cantwell); Ashton Brief, supra note 48, at 24 (same). As this analogy is not in the State's favor, it does not appear in Kentucky's brief.
(50.) 365 U.S. 753 (1961).
(51.) Brief for the United States at 10, Bulova Watch Co. v. United States, 1961 WL 101948 (U.S. Mar. 3, 1961) (No. 241) [hereinafter Bulova Brief],
(52.) Bulova, 365 U.S. at 758.
(53.) Bulova Brief, supra note 51, at 16.
(54.) Bulova, 365 U.S. at 760.
(55.) 560 U.S. 48 (2010).
(56.) Brief for Petitioner at 26, Graham v. Florida, 2009 WL 2159655 (U.S. July 16, 2009) (No. 08-7412) (discussing conclusions reached in Roper v. Simmons, 543 U.S. 551 (2005)) [hereinafter Graham Brief].
(57.) Graham, 560 U.S. at 68 (same).
(58.) Graham Brief, supra note 56, at 49.
(59.) Graham, 560 U.S. at 68.
(60.) 561 U.S. 1 (2010).
(61.) Brief for Respondents at 18, Holder v. Humanitarian Law Project, 2009 WL 4951303 (U.S. Dec. 22, 2009) (No. 08-1498) [hereinafter Humanitarian Law Brief],
(62.) Humanitarian Law Project, 561 U.S. at 19.
(63.) Humanitarian Law Brief, supra note 61, at 13.
(64.) Humanitarian Law Project, 561 U.S. at 26 (citing "Brief for Government" as source).
(65.) 562 U.S. 476 (2011).
(66.) Brief for the United States at 30, Pepper v. United States, 2010 WL 3426283 (U.S. Aug. 31, 2010) (No. 09-6822) (citing Koon v. United States, 518 U.S. 81, 113 (1996)) [hereinafter Pepper Brief).
(67.) Pepper, 562 U.S. at 487.
(68.) Pepper Brief, supra note 66, at 32.
(69.) Pepper, 562 U.S. at 489.
(70.) -- U.S. --, 133 S. Ct. 1166 (2013).
(71.) Brief for Respondent at 15-16, Marx v. General Revenue Corp., 2012 WL 3945843 (U.S. Sept. 10, 2012) (No. 11-1175) [hereinafter Marx Brief],
(72.) Marx, 133 S. Ct. at 1176
(73.) Marx Brief, supra note 71, at 24-25.
(74.) Marx, 133 S. Ct. at 1177-78.
(75.) -- U.S. --, 133 S.Ct. 596(2012).
(76.) Brief for Respondent at 21, Kloeckner v. Solis, 2012 WL 2883261 (U. S. July 13, 2012) (No. 11-184) [hereinafter Kloeckner Brief],
(77.) Kloeckner, 133 S. Ct. at 605 (citing Kloeckner Brief).
(78.) Kloeckner Brief, supra note 76, at 28.
(79.) Kloeckner, 133 S. Ct. at 606 (citing Kloeckner Brief).
(80.) See supra text accompanying notes 73 and 74.
(81.) Because a detailed examination of each case in this list would require hundreds of pages, I attempt in the following discussion to distill the most salient and relevant shared passages between the briefs and opinions. And because the extent of the similarity between Lifted opinions and briefs is helpful in understanding the impact of the briefs on the opinions, and appreciating how in many instances the briefs are templates for many parts of the opinions, I provide an online appendix that includes each opinion in full, highlighted to show the language shared with the lifted brief. See Adam Feldman, All Copying Is Not Created Equal: Appendix (2016), https://sites.google.eom/a/usc.edu/afresearch/home/papers /allcopyingappendix.
(82.) 435 U.S. 850(1978).
(83.) Brief for the United States at * 27, United States v. Mac Donald 1977 WL 189842 (U.S. Sept. 7, 1977) (No. 75-1892) [hereinafter MacDonald Brief],
(84.) MacDonald, 435 U.S. at 854.
(85.) MacDonald Brief, supra note 83, at *30-*31.
(86.) MacDonald, 435 U.S. at 857.
(87.) MacDonald Brief, supra note 83, at *23-*24.
(88.) MacDonald, 435 U.S. at 857.
(89.) MacDonald Brief, supra note 83, at * 43-* 44.
(90.) MacDonald, 435 U.S. at 861.
(91.) 445 U.S. 55 (1980).
(92.) Brief for United States at *17-*18, Lewis v. United States, 1979 WL 213815 (Nov. 3, 1979) (No. 78-1595) [hereinafter Lewis Brief],
(93.) Lewis, 445 U.S. at 62.
(94.) Lewis Brief, supra note 92, at * 24-* 25.
(95.) Lewis, 445 U.S. at 63-64.
(96.) Lewis Brief, supra note 92, at *41.
(97.) Lewis, 445 U.S. at 66.
(98.) Lewis Brief, supra note 92, at * 40-* 41.
(99.) Lewis, 445 U.S. at 66.
(100.) Lewis Brief, supra note 92, at * 36.
(101.) Lewis, 445 U.S. at 65.
(102.) Lewis Brief, supra note 92, at * 42.
(103.) Lewis, 445 U.S. at 66.
(104.) Lewis Brief, supra note 92, at * 45.
(105.) Lewis, 445 U.S. at 66-67.
(106.) Lewis Brief, supra note 92, at * 48.
(107.) Lewis, 445 U.S. at 67.
(108.) 449 U.S. 117(1980).
(109.) Brief for the United States at * 21, DiFrancesco v. United States, 1980 WL 339988 (U.S. May 28, 1980) (No. 79-567) [hereinafter DiFrancesco Brief],
(110.) DiFrancesco, 449 U.S. at 130.
(111.) DiFrancesco Brief, supra note 109, at * 28 (discussing Bozza v. United States, 330 U.S. 160(1947)).
(112.) DiFrancesco, 449 U.S. at 134 (discussing Bozza v. United States, 330 U.S. 160 (1947)).
(113.) DiFrancesco Brief, supra note 109, at *46-*47 (emphasis in original).
(114.) DiFrancesco, 449 U.S. at 139.
(115.) DiFrancesco Brief, supra note 109, at *20.
(116.) DiFrancesco, 449 U.S. 132.
(117.) DiFrancesco Brief, supra note 109, at *21, *23.
(118.) DiFrancesco, 449 U.S. at 133.
(119.) DiFrancesco Brief, supra note 109, at * 27.
(120.) DiFrancesco, 449 U.S. at 134.
(121.) 460 U.S. 103 (1983).
(122.) Brief for Petitioner at 8, 13-28, Dickerson v. New Banner Inst., 460 U.S. 103 (U.S. June 1982) (No. 81-1180) [hereinafter Dickerson Brief].
(123.) Dickerson, 460 U.S. at 115.
(124.) Dickerson Brief, supra note 122, at 13.
(125.) Dickerson, 460 U.S. at 115.
(126.) Dickerson Brief, supra note 122, at 25-27 (footnote omitted).
(127.) Dickerson, 460 U.S. at 119.
(128.) Dickerson Brief, supra note 122, at 27 (brackets in original).
(129.) Dickerson, 460 U.S. at 119-20.
(130.) Dickerson Brief, supra note 122, at 41.
(131.) Dickerson, 460 U.S. at 122.
(132.) Dickerson Brief, supra note 122, at 31-33 (footnotes omitted).
(133.) Dickerson, 460 U.S. at 121.
(134.) Dickerson Brief, supra note 122, at 34, 35 (footnotes omitted).
(135.) Dickerson, 460 U.S. at 121.
(136.) 464 U.S. 16(1983).
(137.) Brief for the United States at 14, Russello v. United States, 464 U.S. 16 (May 1983) (No. 82-472) [hereinafter Russello Brief],
(138.) Russello, 464 U.S. at 21.
(139.) Russello Brief, supra note 137, at 15, 16.
(140.) Russello, 464 U.S. at 21-22.
(141.) Russello Brief, supra note 137, at 21.
(142.) Russello, 464 U.S. at 23.
(143.) Russello Brief, supra note 137. at 17 (footnote omitted).
(144.) Russello, 464 U.S. at 22.
(145.) Russello Brief, supra note 137, at 22-23.
(146.) Russello, 464 U.S. at 24.
(147.) Russello Brief, supra note 137, at 31-32 (footnote omitted).
(148.) Russello, 464 U.S. at 25-26.
(149.) Russello Brief, supra note 137, at 32-33 (footnote omitted).
(150.) Russello, 464 U.S. at 26.
(151.) Russello Brief, supra note 137, at 45-46.
(152.) Russello, 464 U.S. at 28-29.
(153.) 472 U.S. 713 (1985).
(154.) Brief for the United States at *28-*29, United States v. National Bank of Commerce, 1985 WL 669719 (U.S. Feb. 21, 1985) (No. 84-498) [hereinafter Nat'l Bank of Commerce Brief].
(155.) Nat'l Bank of Commerce, 472 U.S. at 727.
(160.) Nat 7 Bank of Commerce Brief, supra note 154, at * 36-* 37.
(161.) Nat'l Bank of Commerce, 472 U.S. at 729-30.
(162.) 476 U.S. 593 (1986).
(163.) Brief for the United States at 8, United States v. Hughes Properties, 476 U.S. 593 (Feb. 1986) (No. 85-554) [hereinafter Hughes Properties Brief) (brackets in original).
(164.) Hughes Properties, 476 U.S. at 600.
(165.) Hughes Properties Brief, supra note 163, at 10.
(166.) Hughes Properties, 476 U.S. at 600-01.
(167.) Hughes Properties Brief, supra note 163, at 24 (brackets in original).
(168.) Hughes Properties, 476 U.S. at 603.
(169.) 484 U.S. 518 (1988).
(170.) Brief for Petitioner at * 15-* 16, Department of the Navy v. Egan, 1987 WL 880362 (U.S. Aug. 10, 1987) (No. 86-1552) [hereinafter Egan Brief],
(171.) Egan, 484 U.S. at 527.
(172.) Egan Brief, supra note 170, at *20-*21.
(173.) Egan, 484 U.S. at 529-30.
(174.) Egan Brief, supra note 170, at *17-* 18.
(175.) Egan, 484 U.S. at 528.
(176.) Egan Brief, supra note 170, at * 18.
(177.) Egan, 484 U.S. at 528-29.
(178.) Egan Brief, supra note 170, at * 19.
(179.) Egan, 484 U.S. at 529.
(180.) Egan Brief, supra note 170, at *20 (emphasis in original).
(181.) Egan, 484 U.S. at 529.
(182.) 493 U.S. 146 (1989).
(183.) Brief for Petitioner at *24, John Doe Agency v. John Doe Corp., 1988 WL 1025573 (U.S. n.d.) (No. 88-1083) (beginning quoted matter with a section heading) [hereinafter Doe Agency Brief].
(184.) Doe Agency, 493 U.S. at 155-56.
(185.) Doe Agency Brief, supra note 183, at *28 (emphasis in original).
(186.) Doe Agency, 493 U.S. at 157.
(187.) Doe Agency Brief, supra note 183, at * 33.
(188.) Doe Agency, 493 U.S. at 157.
(189.) Doe Agency Brief, supra note 183, at *19.
(190.) Doe Agency, 493 U.S. at 154.
(191.) Doe Agency Brief, supra note 183, at *21 (brackets and emphasis in original).
(192.) Doe Agency, 493 U.S. at 154-55.
(193.) Doe Agency Brief, supra note 183, at * 22.
(194.) Doe Agency, 493 U.S. at 155.
(195.) 493 U.S. 182 (1990).
(196.) Brief for Respondent at * 14, University of Pennsylvania v. EEOC, 1989 WL 1126944 (U.S. Aug. 15, 1989) (No. 88-493) (footnotes omitted) [hereinafter Penn Brief],
(197.) U. Penn, 493 U.S. at 190.
(198.) Penn Brief, supra note 196, at *14-*15.
(199.) U. Penn. 493 U.S. at 190-91 (brackets in original).
(200.) Penn Brief, supra note 196, at *15.
(201.) U. Penn. 493 U.S. at 191 (brackets in original).
(202.) Penn Brief, supra note 196, at * 22 (emphasis in original).
(203.) U. Penn., 493 U.S. at 192 (emphasis in original).
(204.) Penn Brief, supra note 196, at * 21.
(205.) U. Penn., 493 U.S. at 192.
(206.) 508 U.S. 152 (1993).
(207.) Brief for Petitioner at *17, C.I.R. v. Keystone Consolidated Industries, 1992 WL 547216 (U.S. Nov. 19, 1992) (No. 91-1677) [hereinafter Keystone Brief],
(208.) Keystone, 508 U.S. at 159.
(209.) Keystone Brief, supra note 207, at *18.
(210.) Keystone, 508 U.S. at 160.
(211.) Keystone Brief, supra note 207, at * 23-* 24.
(212.) Keystone, 508 U.S. at 161.
(213.) Keystone Brief, supra note 207, at * 21-* 22 (brackets in original).
(214.) Keystone, 508 U.S. at 161.
(215.) 511 U.S. 513 (1994).
(216.) Brief for the United States at *17-*18, Posters N' Things v. United States, 1993 WL 358181 (U.S. June 7, 1993) (No. 92-903) (brackets in original) [hereinafter Posters Brief].
(217.) Posters, 511 U.S. at 520-21 (footnotes omitted).
(218.) Posters Brief, supra note 216, at *18-*19 (brackets in original).
(219.) Posters, 511 U.S. at 521 (brackets in original).
(220.) Posters Brief, supra note 216, at * 20-* 21.
(221.) Posters, 511 U.S. at 522.
(222.) Posters Brief, supra note 216, at * 30-* 32.
(223.) Posters, 511 U.S. at 525-26.
(224.) Posters Brief, supra note 216, at *34.
(225.) Posters, 511 U.S. at 527.
(226.) Posters Brief, supra note 216, at * 19.
(227.) Posters, 511 U.S. at 521.
(228.) 350 U.S. 247 (1956).
(229.) In all three-column Steiner quotations, the petitioner's brief, which is not highly similar to the opinion, is in the left column. The highly similar SG's brief is in the center column, and the opinion is in the right column.
(230.) Brief for Petitioners at * 2-* 3 Steiner v. Mitchell, 1955 WL 72535 (U.S. Aug. 12, 1955) (No. 22) [hereinafter Steiner Petitioners' Brief],
(231.) Brief for Respondent at *2 Steiner v. Mitchell, 1955 WL 72536 (U.S. Sept. 26, 1955) (No. 22) [hereinafter Steiner Respondent's Brief.].
(232.) Steiner, 350 U.S. at 248.
(233.) It is worth noting that the opinion also derives from the lower court opinion, but the shared language is mainly between the opinion and the SG's brief, and not between the lower court's opinion and the Supreme Court's opinion.
(234.) Steiner Petitioners' Brief, supra note 230, at * 4.
(235.) Steiner Respondent's Brief, supra note 231, at * 3, * 4 (citations omitted).
(236.) Steiner, 350 U.S. at 249-50.
(237.) Steiner Respondent's Brief, supra note 231, at *7, *8.
(238.) Steiner, 350 U.S. at 251.
(239.) See Section 111(F)(1), supra.
(240.) 376 U.S. 169(1964).
(241.) Brief for Petitioners at * 25-* 26 Tilton v. Missouri Pacific Railroad, 1963 WL 105912 (U.S. Aug. 21, 1963) (No. 49) (footnote omitted) [hereinafter Tilton Brief],
(242.) Tilton, 376 U.S. at 177.
(243.) Tilton Brief, supra note 241. at * 22 (discussing McKinney v. Mo.-Kan.-Tex. R. Co., 357 U.S. 265 (1958)), * 34.
(244.) Tilton, 376 U.S. at 177 (discussing McKinney v. Mo.-Kan.-Tex. R. Co., 357 U.S. 265 (1958)), 181.
(245.) 375 U.S. 217(1963).
(246.) Brief for Respondent at *19, Foti v. INS, 1963 WL 105680 (U.S. July 31, 1963) (No. 28) (footnote omitted) [hereinafter Foti Brief],
(247.) Foti, 375 U.S. at 223.
(248.) Foti Brief, supra note 246, at *24.
(249.) Foti, 375 U.S. at 224.
(250.) Foti Brief, supra note 246, at * 12.
(251.) Foti, 375 U.S. at 230.
(252.) 452 U.S. 314(1981).
(253.) Brief for Appellant at * 26, Hodel v. Indiana, 1980 WL 339846 (U.S. Nov. 29, 1980) (No. 80-231) [hereinafter Hodel Brief).
(254.) Hodel, 452 U.S. at 326 (quoting Stafford v. Wallace, 258 U.S. 495, 521 (1922)).
(255.) Hodel Brief, supra note 253, at * 17.
(256.) Hodel, 452 U.S. at 327 (footnotes omitted).
(257.) Hodel Brief, supra note 253, at * 28 (footnote omitted).
(258.) Hodel, 452 U.S. at 333.
(259.) Hodel Brief, supra note 253, at * 20.
(260.) Hodel, 452 U.S. at 329 (footnote omitted).
(261.) Hodel Brief, supra note 253, at * 27.
(262.) Hodel, 452 U.S. at 332.
(263.) Hodel Brief, supra note 253, at * 30.
(264.) Hodel, 452 U.S. at 334 (footnote omitted).
(265.) Hodel Brief, supra note 253, at * 36.
(266.) Hodel, 452 U.S. at 335-36.
(267.) 453 U.S. 156(1981).
(268.) Brief for Petitioner at 11, Lehman v. Nakshian, 453 U.S. 156 (Jan. 1981) (No. 80 242) (emphasis in original) [hereinafter Lehman Brief).
(269.) Lehman, 453 U.S. at 161.
(270.) Lehman Brief, supra note 268, at 31.
(271.) Lehman, 453 U.S. at 164-65 (footnote omitted).
(272.) Lehman Brief, supra note 268, at 40-41.
(273.) Lehman, 453 U.S. at 168.
(274.) Lehman Brief, supra note 268, at 5-6, 17.
(275.) Lehman, 453 U.S. at 166.
(276.) 450 U.S. 288(1981).
(277.) Brief for Petitioner at *39-*40, Carter v. Kentucky, 1980 WL 339742 (1981) (No. 80-5060).
(278.) Carter, 450 U.S. at 304.
(279.) 465 U.S. 354(1984).
(280.) Brief for Petitioner at 21, United States v. One Assortment of 89 Firearms, 465 U.S. 354 (June 1983) (No. 82-1047) (footnote omitted) [hereinafter 89 Firearms Brief].
(281.) 89 Firearms, 465 U.S. at 363.
(282.) 89 Firearms Brief, supra note 280, at 21-22.
(283.) 89 Firearms, 465 U.S. at 363.
(284.) 89 Firearms Brief, supra note 280, at 24-25.
(285.) 89 Firearms, 465 U.S. at 364.
(286.) One exception would be Carter. See text accompanying note 276, supra (noting that lifted language in Carter came from a brief filed by a team of lawyers working for Kentucky's Department of Public Advocacy).
(287.) See, e.g., Corley, supra note 22 (discussing the influence of merits briefs on the language of Supreme Court opinions).
(288.) For discussion of repeat players' success in the Supreme Court see, for example, Joseph W. Swanson, Experience Matters: The Rise of a Supreme Court Bar and Its Effect on Certiorari, 9 J. app. prac. & process 175 (2007); Kevin T. McGuire, Explaining Executive Success in the U. S. Supreme Court, 51 political research Q. 505 (1998), and Kevin t. McGuire, Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success, 57 J. politics 187 (1995). For a more detailed look at the Solicitor General's unique impact on Supreme Court opinion language, see Black and Owens, supra note 22, and Patricia a. Millett, "We're Your Government and We're Here to Help": Obtaining Amicus Support from the Federal Government in Supreme Court Cases, 10 J. app. prac. & process 209 (2009), the latter noting that, "once requested by the Supreme Court, the Solicitor General's analysis of the importance of a question presented and the necessity and appropriateness of certiorari review carry significant weight with the Court." Millett, supra this note, at 215-16 (footnote omitted).
(289.) See Rehnquist, supra note 17; Tate, supra note 17.
(290.) Russello, 464 U.S. at 22 (1983).
(291.) Natl Bank of Commerce, 472 U.S. at 725.
(292.) Since clerks are involved in the process of drafting opinions it is plausible that these choices of shared language stem from clerks' decisions. To this point, in an interview Justice Ginsburg related the clerks' role in opinion drafting when she said, "I would like to do all of my own work so I could write all my opinions myself, but there is just not enough time to do that." Todd C. Peppers, Ruth Bader Ginsburg and Her Law Clerks, in Peppers & Ward, supra note 2, at 397. It is also the case that even if the shared language in some of these instances stems from a source that both the brief and the opinion share, the lack of attribution does not change.
(293.) See, e.g., Rebecca Mae Salokar, The Solicitor General: The Politics of Law 161 (1992) (noting in discussion of a related topic that "solicitors general must consider the trust they enjoy with the Court"); cf. Michael A. Bailey, Brian Kamoie & Forrest Maltzman, Signals from the Tenth Justice: The Political Role of the Solicitor General in Supreme Court Decision Making, 49 Am. J. political SCI. 72, 83 (2005) (noting, after examining relationship between SG and Court, SG's "direct impact" on "decisions reached by the Court" and "influence" on "all justices," and acknowledging SG's "success rates").
(294.) See, e.g., Samuel Krislov, The Amicus Curiae Brief From Friendship to Advocacy, 72 Yale L.J. 694, 717 (1963) (describing the Court's seeking the expertise of the SG and others by inviting them to file amicus briefs); see also Millett, supra note 288, at 225 (noting that the SG filed more amicus briefs--thirty--than merits briefs--twenty-seven--in the 2007 term).
(295.) The question of the source of lifted language may be further complicated in situations in which briefs look to resources like the opinions below for their language, simply re-framing it in a most favorable light. See, e.g., Justin Wedeking, Supreme Court Litigants and Strategic Framing, 54 AM. J. POLITICAL SCI. 617 (2010).
(296.) There is a small body of scholarship looking specifically at judicial plagiarism, but it is primarily focused on the copyright implications of the practice and its use by the lower courts. See, e.g., Douglas R. Richmond, Unoriginal Sin: The Problem of Judicial Plagiarism, 45 ARIZ. St. L.J. 1077 (2013); Carol M. Bast & Linda B. Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 CATH. U. L. REV. Ill (2008); Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 GEO. J. LEGAL ETHICS 237 (2008); Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical? 18 CARDOZO L. Rev. 1253 (1996).
(297.) See generally, e.g., Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior (2006) (describing the many audiences that may affect Supreme Court Justices' behavior and why the Justices likely care about the opinions of these audiences).
(298.) Cf. Tony Mauro, Lifting the Veil: Justice Blackmun 'v Papers and the Public Perception of the Supreme Court, 70 Mo. L. Rev. 1037 (2005) (describing Justice Blackmun's other uncommon behaviors as a Justice).
(299.) Although this might be accurate at the level of particular cases, the average percentage of overlapping language between briefs and Justice Blackmun's opinions is not high compared to the other Justices. See Feldman, supra note 5 (showing that the mean overlap value across the 1946 through 2013 terms is 9.54 percent, and that Justice Blackmun's mean overlap value is just above average at 9.90 percent).
(300.) Lee Epstein, William w. Landes & Richard A. posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice 52 (2013).
Adam Feldman *
* Postdoctoral Fellow in the Empirical Study of Public Law, Columbia Law School; Ph.D. candidate, University of Southern California; J.D., Boalt Hall, University of California, Berkeley; B.A., University of California, Los Angeles.
Table 1 Typology of Impact of Brief on Opinion Language Overlapping of Words and/or Total of Shared Words High Low Lifted Language Shared Understanding Greatest impact throughout Shared language generally opinion; brief used as template; interspersed throughout opinion; shared legal reasoning and includes facts, law, secondary salient language; brief clear authority--often with significant source impact on opinion Common Source Traditional Impact Generally shared source From marginal to interspersed law described in lower-court record and facts--most common form is shared source Table 2 Impact of Brief on Opinion Language Justice Term Case Party Facts/Law Warren 1955 Steiner (SG brief) Resp 71/14% Goldberg 1963 Tilton (SG brief) Pet 43-44% Warren 1963 Foti (SG brief) Resp 43/30% Marshall 1975 Train (SG brief) Pet 29/33% Blackmun 1977 MacDonald (SG brief) Pet 30/46% Blackmun 1979 Lewis (SG brief) Resp 35/38% Blackmun 1980 Pet 41/28% Marshall 1980 Hodel (SG brief) Pet 56 37% Stewart 1980 Lehman (SG brief) Pet 22/50% Stewart 1980 Carter Pet 48 32% White 1980 Valencia Pet 50:30% Blackmun 1982 New Banner (SG brief) Pet 55/38% Blackmun 1983 Russello (SG brief) Resp 33/55% Burger 1983 89 Firearms (SG brief) Pet 28 38% Blackmun 1984 Nat 7 Bank (SG brief) Pet 43 51% Blackmun 1985 Hughes (SG brief) Pet 37 28% Powell 1986 Yuckert (SG brief) Pet 39/49% Blackmun 1987 Egan (SG brief) Pet 60,47% Blackmun 1989 Doe Agency (SG brief) Pet 44 38% Blackmun 1989 U. Penn (SG brief) Resp 53-25% Blackmun 1992 Keystone (SG brief) Pet 39/37% Blackmun 1993 Posters N' Things (SG brief) Resp 54/38% Justice Words Total Warren 1,015 53% Goldberg 1,187 44% Warren 1,119 34% Marshall 1,466 32% Blackmun 1,395 42% Blackmun 1,036 40% Blackmun 1,921 33% Marshall 1,675 43% Stewart 1,141 43% Stewart 1,427 41% White 1,153 35% Blackmun 1,975 43% Blackmun 1,821 51% Burger 1,178 >8 Blackmun 2,216 50% Blackmun 1,108 33% Powell 1,446 43% Blackmun 1,955 52% Blackmun 1,097 42% Blackmun 1,555 33% Blackmun 1,010 39% Blackmun 1,178 41%
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|Title Annotation:||Continuation of III. Measuring Language Overlap F. Lifted Relationships (High Percentage Overlap and High Word Overlap) 1. Blackmun Cases through IV. Conclusion: Making Sense of the Relationship Between Merits Briefs and Supreme Court Opinions, with footnotes, p. 82-111|
|Publication:||Journal of Appellate Practice and Process|
|Date:||Mar 22, 2016|
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