Legal scholarship highlight: You had me at hello – Examining the impact of powerful introductory emotional hooks in briefs in recent high-profile cases

Maureen Johnson is an Associate Clinical Professor at Loyola Law School, Los Angeles.  She previously practiced at Mayer, Brown & Platt and Kaye Scholer, LLP.

Just three weeks ago, Chief Judge Merrick Garland stood on the steps of the Rose Garden graciously and humbly accepting President Barack Obama’s nomination to the Supreme Court.  Toward the end of his speech, Garland repeated the catchphrase that we have come to expect from Supreme Court nominees –  namely, that emotion will play no role in judicial decision-making.  As Garland eloquently put it:

People must be confident that a judge’s decisions are determined by the law, and only the law. . . .  He or she must put aside his personal views or preferences, and follow the law — not make it.

Despite such reassurances, support for a Supreme Court nominee usually splits along partisan lines.  Why?  The prevailing assumption is that Justices certainly do allow emotions to factor into judicial decisions and the nominee presumably shares the same ideological beliefs as the nominating president.  And perhaps the first part of that assumption is correct.  For at least a century, legal realists – including esteemed jurists such as Justice Benjamin Cardozo and Judge Richard Posner – have posited that even the most well-intentioned judge cannot simply check his or her emotions at the door when entering a courtroom.

My article in the Indiana Law Review examines this theory of legal realism through the lens of the briefing and opinions in five recent hotly contested Supreme Court cases:  Obergefell v. Hodges (same-sex marriage); Adoptive Couple v. Baby Girl (parental rights under the Indian Child Welfare Act); AT&T Mobility v. Concepcion (preemption / unconscionability of class-wide arbitration waivers); Burwell v. Hobby Lobby Stores, Inc. (religious freedom / birth control); and Glossip v. Gross (death penalty / drug protocol).  The Obergefell discussion also includes United States v. Windsor (Defense of Marriage Act) and Hollingsworth v. Perry (California’s ban on same-sex marriage).

The particular focus is on what is referred to as the “hello” of a brief – more particularly, the first few introductory paragraphs in which the brief-writer has an opportunity to truly talk to the Justices.  It’s not the procedural history or even the often cumbersome “question presented.”  It’s where the advocate sets forth the theory of the case in a straight-forward conversational manner that incorporates both an emotional and intellectual appeal.  Put simply, the “hello” is the first spot where the reader really starts reading.

There are two very good reasons for utilizing “hellos” that pack a one-two punch of emotion and reason.  First, the emotional appeal just might tip the scales for a particular Justice.  Second, a powerful “hello” aids the court in crafting an opinion that is morally and legally justified.

Stellar scribes have long known that the gold standard for persuasion is winning the reader over in the heart and the mind.  In fact, Aristotle deserves kudos for making this point as he traversed the cobble-stoned roads of ancient Greece.  Cognitive scientists also raise the issue of implicit bias, meaning that an individual may not even be consciously aware that emotion has entered into decision-making.  It also seems undisputed that we all typically are more open to resolving an issue in accordance with our emotional reaction.  Put simply, when our hearts are moved, our minds often follow.

A truly powerful “hello” seals the deal at the onset.  Vivid language conjures up concrete images that evoke an immediate and unshakeable visceral response.  For example, in Adoptive Parents v. Baby Girl, the first sentence paints a picture of a callous father renouncing his parental rights in a text message sent to the birth mother.   Personalization was also used in the “hellos” in Obergefell v. Hodges.  This allowed readers to easily visualize same-sex couples and their children as they suffered hurtful and unnecessary discrimination.  How could a reader not want to right the wrong of shaming an innocent child?  In some ways, such images are akin to the proverbial elephant in the room.  While the reader may try and dismiss an initial emotional reaction, the bell already has been rung.  The reader knows her own desired outcome.

Where this all really comes into play is when there are strong legal arguments on both sides, meaning a case could be decided either way and still be grounded on solid legal precedent.  Scholars have referred to such cases as “open cases.”  In other words, there is a legitimate argument that either side is correct and an equally compelling argument that each side is not.  It all depends upon how an issue is framed.

Looking again at Obergefell, if the legal question was whether there was a fundamental historic right to same-sex marriage, the answer was no.  If the legal question was instead whether there was a fundamental right to marry, which therefore could not be denied to gays and lesbians, the answer was yes.  When the law plainly permits two opposing results, it is difficult to ignore the possible role that emotions play.

Further proof that Justices allow emotions to play a factor in judicial decision-making can be found in countless number of dissenting opinions in which Justices have either subtly –  or not so subtly – called out other Justices on this very point.  As my article points out, this practice is not limited to a particular set of Justices.  If the Justices themselves believe that emotion can play a role – albeit in the decisions of other Justices – it is hard to rule out the possibility that this is true.

It also is widely accepted that Supreme Court opinions must be written in a manner to persuade the American public of both the legal and moral justness of the decision.  As Barry Friedman discussed in his book, The Will of the People, there long has existed a “tacit deal” whereby the “American people would grant the justices their power, so long as the Supreme Court’s interpretation of the Constitution did not stray too far from what a majority of the people believed it should be.”  If nothing else, a powerful “hello” arms the Justices with the exact tools they need to persuade the American public that they knew they were adjudicating profound matters and that they got it right.

Were the “hellos” in the prevailing briefs that I examined up to snuff?  They certainly were.  While we may never know what truly swayed any given Justice in any given case, what we do know is that the prevailing “hellos” were showcased front and center in the resulting Supreme Court opinion.  This was so even when the emotional hooks had little or even nothing to do with the merits of the case.

To demonstrate the impact of the “hellos,” my article tracks actual excerpts from the prevailing briefs in tandem with actual excerpts from the Supreme Court opinions.  The parallels were stunning.  Often times, the language almost exactly matched language used in the prevailing brief.  Emotional appeals also were repeated throughout the Supreme Court opinions.  For example, the “hello” in the prevailing brief in AT&T v. Concepcion, which dealt with preemption under the Federal Arbitration Act, pointed out that the district court judge stated the arbitration agreement at issue contained “perhaps the most fair and consumer-friendly provisions this Court has ever seen.”  Of course, the perceived fairness had nothing at all to do with preemption.  Yet that notion would permeate the Supreme Court opinion.

The impact went a step further.  The language of the Supreme Court opinions squarely adopted the manner in which the legal issues were framed in the prevailing “hellos.”  As noted above, this is absolutely critical.  When a case arguably is an “open case,” there really are two right answers depending on how the issue is framed.

Lessons for practitioners?  Judges are human beings who put on their robes one sleeve at a time.  This applies to both the revered nine on our Supreme Court as well as trial court judges throughout the nation, even in the tiniest of tribunals.  Whether for pride, posterity, or simply to be able to look themselves in the mirror, judges want to be the conduit for justice – not injustice.  While a good judge naturally strives to set aside emotions and rule solely based on legal precedent, it certainly doesn’t hurt to give a judge a reason to want to rule in your favor.  This especially is so in those “open cases” in which a judge has the discretion to rule either way.

My article ends with ten concrete tips for practitioners to craft powerful introductory “hellos.”  The most important tip is to win the reader over both in the heart and in the mind.  If there is a strong legal argument, there almost certainly is a strong emotional argument and a good advocate will dig deep to find that.

The second most important tip is to tell your story your way.  It’s your brief.  Grab the reader at the get-go and never, ever let go.