Is the Supreme Court acting less like a court?

Over time, by increasingly focusing on an idiosyncratic set of topics and by constructing their arguments in an increasingly unique way, Supreme Court opinions have become more distinctive. That hypothetical random opinion found on the street is easier to identify because the court is expressing itself in a new subgenre of legal writing that is more identifiable.

This isn’t just because of differences in the mix of topics the courts rule on. For example, the Supreme Court takes up constitutional issues more commonly than any other type of case. The appeals courts, by contrast, decide the occasional high-profile constitutional cases alongside a large number of unexceptional contract law, administrative law and criminal law matters. Our analysis shows that while the details of these differences shift over the years, the degree of difference didn’t change from 1951 to 2007.

What we find, instead, is that the Supreme Court is analyzing and writing about cases in an increasingly idiosyncratic fashion, distinct from the style of the appeals courts. This may contribute to an overall impression within the public that the court is just another political body. If that is true, the Supreme Court’s unique place in American society may be compromised, as the reservoir of prestige and respect that it currently enjoys eventually runs dry.