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LANCE N. LONG AND WILLIAM F. CHRISTENSEN*
When Justices (Subconsciously) 
Attack: The Theory of Argumentative 
Threat and the Supreme Court 
Introduction ...................................................................................... 933
I.  Writing Styles and Appellate Outcomes: Is the Verdict In?.. 939
II.  The Theory of Argumentative Threat .................................... 945
A. Linguistic Responses to Perceived Threats .................... 946
B. Justices’ Responses to Perceived Threats ...................... 947
Conclusion ........................................................................................ 958
INTRODUCTION
udicial attacks seem to be on the rise. For example, according to 
some sources,1 high-profile verbal “attacks” between Supreme 
Court Justices occurred after the National Federation of Independent 
Business v. Sebelius2 decision. Written attacks and counterattacks 

* Lance N. Long is an Associate Professor of Legal Skills at Stetson University College 
of Law. William F. Christensen is a Professor of Statistics at Brigham Young University. 
The Authors are thankful for Alexander Zaitzeff’s analysis of previously gathered data; for 
Chrissy Carpenter’s research assistance; and for the thoughts and ideas Professors Kirsten 
Davis, Tom Lee, and John Fee suggested during the writing of this article. Professor 
Kirsten Davis also provided valuable edits and insights on drafts. The Authors are also 
thankful for wonderful research assistants, Dallan Bunce and Abigail Pressler, who 
compiled the data for most of the analyses, and for the research assistance of Jessica 
Ronay, Adam LaBonte, and Alex Gancayco. Finally, thanks to Professor Brooke Bowman 
for her editing assistance. The Authors acknowledge and thank Stetson University College 
of Law and Brigham Young University for their support of this Article. 
1 E.g., Debra Cassens Weiss, Scalia Was ‘Enraged’ at Roberts’ Switched Vote on the 
Health Law, New Book Says, ABA JOURNAL (Sept. 17, 2012, 6:55 AM), http://www.aba 
journal.com/mobile/article/scalia_was_enraged_at_roberts_switched_vote_on_the_health 
_law_new_book_says/. 
2 No. 11-393 (U.S. June 28, 2012). 
J
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934 OREGON LAW REVIEW [Vol. 91, 933 
between Justice Scalia and Judge Posner, regarding Justice Scalia’s 
defense of textualism in his new book, Reading Law,3 also come to 
mind. The attacks discussed in this Article are not like those attacks. 
The attacks discussed here are not overt attacks. They are more 
subtle, more in the nature of a defense than an offense;4 they are 
likely even subconscious and do not play out in newspapers or legal 
journals, but in the Justices’ written opinions. Interestingly, however, 
as discussed in Part II, like the Sebelius attacks and the Scalia/Posner 
feud, Justice Scalia finds himself in the spotlight of these “attacks” as 
well.
It is human nature to attack, or at least to defend oneself, when we 
feel threatened.5 We humans also know that the threat need not be 
physical in order to elicit a counterattack or a defensive posture. We 
have likely been on the receiving end of a verbal or written threat and 
know from the experience that we may feel like firing off an angry 
response that would not necessarily reflect how we might speak or 
write if we were not responding defensively. And because lawyers 
and judges are no different, they sometimes write angry responses in 
briefs and opinions.6

3 See Bryan A. Garner & Richard A. Posner, How Nuanced is Justice Scalia’s Judicial 
Philosophy? An Exchange, NEW REPUBLIC (Sept. 10, 2012, 12:01 AM), http://www.tnr 
.com/article/politics/107001/how-nuanced-justice-scalias-judicial-philosophy-exchange#. 
Justice Scalia and co-author Bryan Garner explain that the book is “unapologetically 
normative, prescribing what, in our view, courts ought to do with operative language.” Id. 
Posner believes that the book is incoherent and that there is “a pattern of equivocation 
exhibited throughout their book.” Richard A. Posner, The Incoherence of Antonin Scalia,
NEW REPUBLIC (Aug. 24, 2012, 12:00 PM), http://www.tnr.com/article/magazine/books    
-and-arts/106441/scalia-garner-reading-the-law-textual-originalism.
4 In all honesty, this Article should be entitled, “When Justices Get Defensive.” But the 
Authors could not resist the allure of alluding to the “When [Things] Attack” genre of real-
life television. See, e.g., When Animals Attack, IMDB, http://www.imdb.com/title 
/tt0293702/ (last visited Jan. 30, 2013); When Sharks Attack, IMDB, http://www.imdb.com 
/title/tt0987934/ (last visited Jan. 30, 2013); When Vacations Attack, IMDB, http://www 
.imdb.com/title/tt1794677/ (last visited Jan. 30, 2013). 
5 See Stress: Constant Stress Puts Your Health at Risk, MAYO CLINIC (Sept. 11, 2010), 
http://www.mayoclinic.com/health/stress/SR00001. 
6 Justice Scalia is perhaps the most famous, angry responder in contemporary American 
jurisprudence. See, e.g., Linda Greenhouse, Justice Scalia Objects, N.Y. TIMES (Mar. 9, 
2011, 8:40 PM), http://opinionator.blogs.nytimes.com/2011/03/09/justice-scalia-objects/ 
(quoting language from Justice Scalia’s dissent in Michigan v. Bryant, which included 
Justice Scalia’s assessment that a conclusion in the majority opinion was “‘so 
transparently false that professing to believe it demeans this institution,’” and that the 
majority “makes itself the obfuscator of last resort”); see also Donald J. Winder & Jerald 
V. Hale, Enforcing Civility in an Uncivilized World, LITIG. COMMENT. & REV.,
http://www.litcounsel.org/commentary/winder1109.htm (last visited Jan. 30, 2013) 
(discussing the rise of incivility in legal briefs and using Peters v. Pine Meadow Ranch 
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and the Supreme Court
Overt, angry responses are, however, intentional. But, do lawyers 
and judges also react defensively in a more subtle and subconscious 
“attacking” manner even if a brief or an opinion lacks any obvious 
signs of frustration or anger? What about United States Supreme 
Court Justices? Does being on the losing end of an argument change 
the manner in which a Justice writes an opinion? 
Here’s another question: What do the frequent use of intensifiers,7
long sentences, and long words have in common? If you examined 
legal writing texts, you might answer that these writing conventions 
are all characteristic of “poor” legal writing style. And, in fact, these 
conventions are almost universally proscribed by legal writing texts.8

Home Ass’n, 151 P.3d 962 (Utah 2007), as an example). In Peters, the Supreme Court of 
Utah refused to address the merits of an apparently meritorious claim because the brief of 
the appellant’s lawyer was “replete with unfounded accusations impugning the integrity of 
the court . . . below.” 151 P.3d at 962. 
7 In grammar, an intensifier is “a word, esp[ecially] an adjective or adverb, that 
intensifies the meaning of the word or phrase that it modifies, for example, very or 
extremely.” COLLINS ENGLISH DICTIONARY 415 (2d ed. 2006). Also called an “intensive,” 
the Oxford American Dictionary of Current English similarly describes its grammatical 
meaning: “expressing intensity; giving force, as really in my feet are really cold.” THE 
OXFORD AMERICAN DICTIONARY AND LANGUAGE GUIDE 511 (1999) (emphasis in 
original). 
8 For proscriptions against overusing intensifiers, see, e.g., MARY BETH BEAZLEY, A
PRACTICAL GUIDE TO APPELLATE ADVOCACY 234 (3d ed. 2010) (“Clearly, obviously, of
course, and it is evident that have been so overused that they go beyond having no 
meaning to having a negative meaning” (emphasis in original)); BRADLEY G. CLARY &
PAMELA LYSAGHT, SUCCESSFUL LEGAL ANALYSIS AND WRITING: THE FUNDAMENTALS 
88 (2003) (directing writers to “[l]et nouns and verbs do most of your talking, not 
adjectives and adverbs” and to “[p]articularly avoid exaggeration through conclusory 
modifiers such as ‘clearly,’ ‘plainly,’ ‘very,’ ‘obviously,’ ‘outrageous,’ ‘unconscionable,’ 
and the like”); LINDA H. EDWARDS, LEGAL WRITING AND ANALYSIS 283 (3d ed. 2011) 
(“Because generations of writers have overused words like ‘clearly’ or ‘very,’ these and 
other common intensifiers have become virtually meaningless. As a matter of fact, they 
have begun to develop a connotation exactly opposite their original meaning.”); BRYAN A.
GARNER, THE REDBOOK: A MANUAL ON LEGAL STYLE 192 (2d ed. 2002) (“[C]learly; 
obviously. As sentence adverbs <Clearly, this is true>, these weasel words are often 
exaggerators. They may reassure the writer but not the reader. If something is clearly or 
obviously true, then demonstrate that fact to the reader without resorting to the conclusory 
use of these words.”); RICHARD K. NEUMANN, JR., LEGAL REASONING AND LEGAL 
WRITING: STRUCTURE, STRATEGY, AND STYLE 330 (5th ed. 2005) (stating that “‘[i]t is 
obvious’ and ‘clearly’ supply no extra meaning” and, “[i]nstead, . . .divert the reader’s 
attention from the message of the sentence”); MARY BARNARD RAY & JILL J. RAMSFIELD,
LEGAL WRITING: GETTING IT RIGHT AND GETTING IT WRITTEN 205 (3d ed. 2000) 
(instructing writers to “avoid modifiers that have little substantive meaning, such as in this 
manner, very, or obviously”); Neil Daniel, Writing Tips, 1 PERSP.: TEACHING LEGAL RES.
& WRITING 87, 88 (1993) (“The rule for very, a conspicuously empty modifier, applies for 
other intensifiers as well. In general, writing without such words is stronger than writing 
with them. . . . Avoid clearly. The word is almost always the writer’s last resort when an 
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On the other hand, if you had researched the use of these writing 
conventions in appellate briefs and appellate opinions, you might 
answer that these conventions are found more frequently when 
lawyers and judges think—or know—that they are on the losing end 
of an argument.9 Or, in other words, these conventions are found 
more frequently when the writer feels her position is threatened. 
As lawyers, we hope that such language conventions, regardless of 
whether they constitute “poor writing style” or “defensive language,” 
would not ultimately affect appellate court decisions. We want to 

argument is murky.”); and James W. McElhaney, A Style Sheet for Litigation, 1 SCRIBES J.
LEGAL WRITING 63, 71 (1990) (discussing that a “recent study of courtroom language 
showed what good writers already know—intensifiers often have the opposite of their 
intended effect”). 
 For proscriptions against using long sentences and long words, see, e.g., CHARLES R.
CALLEROS, LEGAL METHOD AND WRITING 268 (6th ed. 2011) (stating that clear, concrete, 
and simple terms allow readers to more easily grasp ideas); CHRISTINE COUGHLIN ET AL., 
A LAWYER WRITES: A PRACTICAL GUIDE TO LEGAL ANALYSIS 257–58 (2008) (stating 
that because “[a]fter [twenty five] words, a reader will usually stop absorbing,” writers 
should create shorter sentences); JOHN C. DERNBACH ET AL., A PRACTICAL GUIDE TO 
LEGAL WRITING AND LEGAL METHOD 244, 246 (4th ed. 2010) (instructing writers to use 
active voice and avoid wordy phrases); EDWARDS, supra, at 274, 281, 284 (noting that 
paragraphs should be moderately short, unnecessary phrases should be omitted or replaced 
by a single word, and long sentences should be avoided); MICHAEL D. MURRAY &
CHRISTY HALLAM DESANCTIS, LEGAL WRITING AND ANALYSIS 242 (2009) (noting that 
writers should write as plainly as possible, break up long sentences, and write shorter 
paragraphs using fewer sentences); NEUMANN, supra, at 224, 241–43 (stating that an 
effective paragraph is of readable length, is broken up into smaller sections, streamlines 
and breaks up unnecessary wordy phrases, and avoids passive voice); RICHARD K.
NEUMANN, JR. & SHEILA SIMON, LEGAL WRITING 154, 156 (2d ed. 2011) (instructing 
writers to break sentences into two or more shorter sentences, break up paragraphs that are 
too large, and break material into “digestible chunks”); MARY BARNARD RAY, THE
BASICS OF LEGAL WRITING 132–33 (rev. 1st ed. 2008) (stating that writers need to use 
shorter, simpler sentences in legal writing and include no more than one phrase before and 
after the subject and verb in each sentence); NANCY L. SCHULTZ & LOUIS J. SIRICO, Jr., 
LEGAL WRITING AND OTHER LAWYERING SKILLS 91–94, 98–99 (5th ed. 2010) 
(inculcating writers to use the simplest and most direct language possible, eliminate 
passive voice, avoid legalese, and write short sentences); HELENE S. SHAPO ET AL., 
WRITING AND ANALYSIS IN THE LAW 207–08, 231, 232, 235 (5th ed. 2008) (directing 
writers to avoid long, complicated sentences, omit wordy, unnecessary phrases, keep 
language simple and straightforward, use short, concrete subjects, and write short, concise 
sentences); ROBIN WELLFORD SLOCUM, LEGAL REASONING, WRITING, AND OTHER 
LAWYERING SKILLS 271–72, 276–77 (3d ed. 2011) (stating that writers should use the 
active voice, keep sentences short to avoid confusing the reader, “[s]ubstitute [s]imple 
[w]ords for [l]onger [w]ords,” and use concrete, specific words). 
9 See Lance N. Long & William F. Christensen, Clearly, Using Intensifiers Is Very 
Bad—Or Is It?, 45 IDAHO L. REV. 171 (2008) [hereinafter Clearly, Using Intensifiers];
Lance N. Long & William F. Christensen, Does the Readability of Your Brief Affect Your 
Chance of Winning an Appeal?, 12 J. APP. PRAC. & PROCESS 145 (2011) [hereinafter 
Readability of Your Brief]. 
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and the Supreme Court
believe that appellate court decisions will be decided on the relevant 
facts and law applicable to a client’s case and not on a particular 
writing style. Many judges undoubtedly share this sentiment. As one 
California Court of Appeals justice stated, “That a decent writing 
style is appreciated by a busy jurist is self-evident. However, the 
suggestion that appeals are ‘won’ or ‘lost’ thereby, is a conceit I am 
loathe to see further encouraged.”10
Nevertheless, abundant research has shown that writing style and 
readability do affect a reader’s perception of the message and the 
messenger.11 Even the simple convention of using intensifiers, words 

10 Robert W. Benson & Joan B. Kessler, Legalese v. Plain English: An Empirical Study 
of Persuasion and Credibility in Appellate Brief Writing, 20 LOY. L.A. L. REV. 301, 304–
05 (1987) (quoting a letter from Donald N. Gates, Justice, Cal. Courts of Appeal, to Robert 
W. Benson, Professor, Loyola Law Sch. (June 12, 1985)). 
11 See RICHARD E. PETTY & JOHN T. CACIOPPO, ATTITUDES AND PERSUASION:
CLASSIC AND CONTEMPORARY APPROACHES 70–72, 77–79 (1981) (discussing the effect 
of number of arguments, order of arguments, and message comprehensibility); Benson & 
Kessler, supra note 10, at 304 n.27 (citing ERWIN P. BETTINGHAUS & MICHAEL J. CODY,
PERSUASIVE COMMUNICATION (4th ed. 1987), which discusses research into what 
constitutes effective persuasion)); Alice H. Eagly, Comprehensibility of Persuasive 
Arguments as a Determinant of Opinion Change, 29 J. PERSONALITY & SOC. PSYCHOL.
758 (1974); see also Benson & Kessler, supra note 10, at 302; James Lindgren, Style 
Matters: A Review Essay on Legal Writing, 92 YALE L.J. 161, 169 (1982) (book review) 
(characterizing Flesch’s then-new How to Write Plain English as “good” but questioning 
the value of applying a Flesch-type analysis to legal writing and asking rhetorically: “Why 
force yourself to write at an eighth- or ninth-grade level if you are writing mainly for an 
audience of other lawyers?”); Joseph Kimble, Answering the Critics of Plain Language, 5 
SCRIBES J. LEGAL WRITING 51, 68–71 (1994–1995) (describing a study showing that the 
contract and statutory provisions were better understood by law students, law school staff, 
and state-agency staff when the provisions were rewritten in a more readable format). See 
generally WILLIAM H. DUBAY, THE PRINCIPLES OF READABILITY 54–55 (2004), 
available at http://almacenplantillasweb.es/wp-content/uploads/2009/11/The-Principles-of 
-Readability.pdf; EDWARD FRY, THE LEGAL ASPECTS OF READABILITY (rev. 1998) 
(available with the Education Resources Information Center) (revised version of a talk 
given at the International Reading Association, New Orleans, in May 1989); PETER M.
TIERSMA, LEGAL LANGUAGE 220–27 (1999); Robert W. Benson, The End of Legalese: 
The Game is Over, 13 N.Y.U. REV. L. & SOC. CHANGE 519, 547–58 (1984–1985). 
 An example of this sentiment was also stated by the court in Johnson v. Revenue 
Management Corp. when scrutinizing dunning letters sent to debtors by collection 
agencies: “Unsophisticated readers may require more explanation than do federal judges; 
what seems pellucid to a judge, a legally sophisticated reader, may be opaque to someone 
whose formal education ended after the sixth grade.” 169 F.3d 1057, 1060 (7th Cir. 1999); 
see also HUNTER M. BRELAND & FREDERICK M. HART, DEFINING LEGAL WRITING: AN
EMPIRICAL ANALYSIS OF THE LEGAL MEMORANDUM (Law Sch. Admission Council 
Research Report 93-06, 1994) (describing an extensive survey and regression analysis 
conducted to determine what constitutes good or poor legal writing); Benson & Kessler, 
supra note 10; Sean Flammer, Persuading Judges: An Empirical Analysis of Writing Style, 
Persuasion, and the Use of Plain English, 16 LEGAL WRITING 183 (2010) (describing a 
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such as “very,” “clearly,” and “obviously,” has been shown to affect a 
reader’s perception of the persuasiveness and credibility of a legal 
argument.12 In particular, two previous studies by the Authors13
showed that the outcome of an appeal is related to the interaction of 
the frequency of intensifiers used by an appellant in a brief and by the 
court in its opinion. One of the authors’ studies also shows that using 
long sentences and long words is statistically correlated with 
dissenting Supreme Court opinions.14
Still, no research or study has conclusively shown that an appeal 
can be “won” or “lost” by implementing—or avoiding—any given 
writing convention. Even in light of the inconclusive evidence of 
whether writing style dictates the outcome of an appeal, there is 
evidence of a correlation between “losing arguments” and certain 
writing conventions.15
This Article proposes the Authors’ novel theory of “argumentative 
threat,” which hypothesizes that when faced with an argument that a 
legal writer believes—or knows—she is likely to lose, the writer will 
tend to write in a style that uses more intensifiers. The theory also 
proposes that longer sentences and longer words may be associated 
with a defensive style of writing. The Authors use the United States 
Supreme Court to illustrate their theory. 
Part I of this Article reviews the scholarly research addressing legal 
writing style and its relationship to appellate outcomes. Part I includes 
a brief review of the Authors’ previous two studies, one of which 
shows that although a statistically significant correlation exists 
between higher intensifier usage and a higher likelihood of losing on 
appeal, that relationship is probably not causal. In other words, 

survey showing that most state and federal judges prefer plain language over legalese and 
describing three earlier surveys that reached the same result); cf. TIERSMA, supra, at 211–
30 (listing areas in which plain language is better understood than unduly technical 
language and discussing examples); Brady S. Coleman et al., Grammatical and Structural 
Choices in Issue Framing: A Quantitative Analysis of “Questions Presented” from a Half 
Century of Supreme Court Briefs, 29 AM. J. TRIAL ADVOC. 327 (2005); Brady Coleman & 
Quy Phung, The Language of Supreme Court Briefs: A Large-Scale Quantitative 
Investigation, 11 J. APP. PRAC. & PROCESS 75 (2010); Judith D. Fischer, Got Issues? An 
Empirical Study About Framing Them, 6 J. ASS’N LEGAL WRITING DIRECTORS 1 (2009). 
12 Clearly, Using Intensifiers, supra note 9, at 175–76 (describing two surveys showing 
that appellate judges thought briefs were annoying, less persuasive, and less credible if 
they used intensifiers in their writing). 
13 Id.; Readability of Your Brief, supra note 9. 
14 Readability of Your Brief, supra note 9, at 161–62. 
15 Clearly, Using Intensifiers, supra note 9, at 185–86; Readability of Your Brief, supra
note 9, at 159–62. 
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and the Supreme Court
although using more intensifiers might not cause you to lose more 
often on appeal, using more intensifiers may indicate that you believe
that you are about to lose an appeal. The study also shows that judges 
writing dissenting (“losing”) opinions will use more intensifiers than 
judges writing majority (“winning”) opinions. The other study shows 
that although no statistically significant relationship exists between 
readability (which is measured by the length of words and sentences) 
and outcome, there are some interesting relationships between the 
readability of briefs and opinions in state supreme courts, federal 
courts of appeals, and the United States Supreme Court. 
Part II explains the theory of argumentative threat and shows how 
the theory of argumentative threat is supported by previous studies by 
other scholars as well as by the Authors’ previous studies. Part II also 
illustrates the theory of argumentative threat, using the United States 
Supreme Court as an example. The theory of argumentative threat 
applied to the Supreme Court posits that Supreme Court Justices write 
in a more defensive posture, typified by using more intensifiers and 
longer words and sentences, when they write a dissenting opinion. 
This Article concludes by summarizing the theory and suggesting 
areas for further research. 
I
WRITING STYLES AND APPELLATE OUTCOMES: IS THE VERDICT IN?
Before addressing appellate writing styles and outcomes, it should 
be noted that there is good evidence showing that oral presentation 
styles and techniques can affect trial outcomes. For example, William 
O’Barr and others proposed that using intensifiers was one of several 
forms of “powerless language.” When powerless language is used by 
witnesses in a courtroom, it “strongly affects how favorably the 
witness is perceived, and by implication suggests that these sorts of 
differences may play a consequential role in the legal process 
itself.”16 Powerless language includes using hedges, (such as “sort 
of,” “kind of,” “a little”), hesitations (such as “ah,” “um,” “let’s see”), 
answering a question with rising intonation (“thirty-five?”), polite 
forms, (“please,” “thank you”) and other similar language forms.17

16 WILLIAM M. O’BARR, LINGUISTIC EVIDENCE: LANGUAGE, POWER, AND STRATEGY 
IN THE COURTROOM 75 (Donald Black ed., 1982). 
17 Id. at 63–75. 
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Other presentational factors may also affect trial outcomes. 
Recently, a study using mock jurors showed “that the presence of 
eyeglasses on a defendant may significantly affect verdict 
outcome.”18 For example, African-American defendants were less 
likely to be convicted of a violent crime if they wore glasses.19 On the 
other hand, Caucasian defendants were more likely to be convicted of 
white-collar crimes if they wore glasses.20 One study even indicated 
that the pitch of a voice might affect a listener’s perception of the 
truthfulness of the speaker.21
While oral presentation likely affects trial outcomes, most judges 
suggest that in the majority of cases, oral advocacy has little effect at 
the appellate level. Federal appellate court judges have estimated that 
oral argument determines the outcome in as few as zero percent or as 
many as thirty-seven percent of cases.22 Justice Thomas sees almost 
no value in oral argument: “I refuse to participate. I don’t like it, so I 
don’t do it.”23 Justice Scalia believes that oral argument rarely 
changes a judge’s mind.24 Justice Ginsburg says that she has “seen 
few victories snatched at oral argument” in her eighteen years on the 
bench, but has seen winners become losers.25 While Chief Justice 
Roberts believes oral argument is “terribly, terribly important,” he 
doesn’t necessarily think it affects the outcome of appeals.26

18 Michael J. Brown, Is Justice Blind or Just Visually Impaired? The Effects of 
Eyeglasses on Mock Juror Decisions, JURY EXPERT, Mar. 2011, at 1, 3–4. 
19 Id.
20 Id. at 4. 
21 William Apple et al., Effects of Pitch and Speech Rate on Personal Attributions, 37 J.
PERSONALITY & SOC. PSYCHOL. 715 (1979). 
22 BUREAU NAT’L AFFAIRS, INC., Oral Argument, in FEDERAL APPELLATE PRACTICE
437, 439 (2008), available at http://subscript.bna.com/pic2/lsll.nsf/8e9ea8728473b3be 
852569f9005d302a/36659829b6a2f21085257505004ffcd9/$FILE/Oral%20Argument.pdf; 
Warren D. Wolfson, Oral Argument: Does It Matter?, 35 IND. L. REV. 451, 453 (2002) 
(generally concluding that almost all judges find that oral argument affects their decisions 
in only a small minority of cases); see also Robert J. Martineau, The Value of Appellate 
Oral Argument: A Challenge to the Conventional Wisdom, 72 IOWA L. REV. 1 (1986) 
(arguing against oral argument, including a claim that it does not usually change the 
outcome of an appeal). 
23 Does Oral Argument Matter, D.C. CIRCUIT REV. (Mar. 22, 2012), http://dccircuit 
review.com/2012/03/22/does-oral-argument-matter/. 
24 Id.
25 Id.
26 Id.; see also Courtpoint, Chief Justice John Roberts on the Topic of Writing,
YOUTUBE (Mar. 11, 2008), http://www.youtube.com/watch?v=ZIjBzn7rbPE (interviewing 
Justice Roberts by Bryan Garner, in which Justice Roberts says that the briefs are more 
important than the oral argument and that “I don’t think anybody would dispute that”). 
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and the Supreme Court
On the other hand, almost every appellate judge recognizes that 
appeals are usually decided on the briefs.27 Despite the importance of 
appellate briefs, there is little scholarship addressing whether 
appellate writing styles affect appellate outcomes. Previous studies 
and surveys by other scholars have suggested that judges generally 
value briefs that are concise and clear. In fact, a survey of 355 federal 
judges (forty-six percent of sitting federal judges in 1999) concluded 
that “[t]he overwhelming message from [the] judges is that they want 
briefs that are concise and clear.”28 Other studies have shown that 
judges appreciate plain language over legalese29 and that good writing 
may enhance a lawyer’s credibility.30 But no study, to the Authors’ 
knowledge, unequivocally finds that a given writing style can 
demonstrably affect an appellate outcome. 
For example, in a previously published article entitled, Clearly, 
Using Intensifiers is Very Bad—Or Is It?,31 the Authors summarized 
the history and status of scholarly research addressing the use of 
intensifiers in lawyers’ briefs and courts’ opinions and determined 
that it is inconclusive as to whether intensifiers actually “intensify” 
much less whether they can affect an appellate outcome.32 Some 
studies have found that increased intensifier usage negatively affects 
the credibility, likeability, and believability of a writer,33 while others 
have found no effect from a more frequent use of intensifiers, or have 

27 D. Franklin Arey, III, Competent Appellate Advocacy and Continuing Legal 
Education: Fitting the Means to the End, 2 J. APP. PRAC. & PROCESS 27, 36 (2000) 
(noting that briefs are the primary, and sometimes the only, way of communicating with 
the court and persuading the judges); Courtpoint, supra note 26. 
28 Kristen K. Robbins, The Inside Scoop: What Federal Judges Really Think About the 
Way Lawyers Write, 8 J. LEGAL WRITING INST. 257, 284 (2002) (noting that judges also 
want well-organized and well-analyzed briefs). 
29 See, e.g., Flammer, supra note 11 (describing a survey showing that most state and 
federal judges prefer plain language over legalese, and describing three earlier surveys that 
reached the same result). 
30 See Charles A. Bird & Webster Burke Kinnaird, Objective Analysis of Advocacy 
Preferences and Prevalent Mythologies in One California Appellate Court, 4 J. APP.
PRAC. & PROCESS 141, 158 (2002); David Lewis, If You Have Seen One Circuit, Have 
You Seen Them All? A Comparison of the Advocacy Preferences of Three Federal Circuit 
Courts of Appeal, 83 DENV. U. L. REV. 893, 917, 929 (2006); Clearly, Using Intensifiers,
supra note 9, at 176; see also David Lewis, What’s the Difference? Comparing the 
Advocacy Preferences of State and Federal Appellate Judges, 7 J. APP. PRAC. & PROCESS
335, 359, 371 (2005). 
31 Clearly, Using Intensifiers, supra note 9. 
32 See id. at 175–80 & nn.13–44 for an extensive description of the studies addressing 
intensifiers by various researchers. 
33 See id. at 177–80 & nn.20–44. 
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even found a positive effect.34 The Authors’ study found a 
statistically significant relationship between the frequent use of 
intensifiers in an appellate brief and the outcome of the appeal: 
[T]he frequent use of intensifiers in appellate briefs (particularly by 
an appellant) is usually associated with a statistically significant 
increase in adverse outcomes for an “offending” party. But—and 
this was an unexpected result—if an appellate opinion uses a high 
rate of intensifiers, an appellant’s brief written for that appeal that 
also uses a high rate of intensifiers is associated with a statistically 
significant increase in favorable outcomes. Additionally, when a 
dissenting opinion is written, judges use significantly more 
intensifiers in both the majority and dissenting opinions. In other 
words, as things become less clear, judges tend to use “clearly” and 
“obviously” more often.35
Because intensifier usage was associated with increased adverse 
outcomes in certain circumstances and with decreased adverse 
outcomes in other circumstances, the results suggested that there was 
not a simple causal relationship between the frequency of intensifier 
use and the outcome of an appeal.36 In fact, the results raised 
additional questions about the meaning of the statistically significant 
relationship between intensifier use and the outcome of an appeal. 
The Authors framed these questions as follows: 
 The results can be interpreted several ways. It may be that . . . 
overuse of intensifiers actually renders [a brief] suspect and subject 
to increased skepticism by appellate court judges. . . . Alternatively, 
it may be that the overuse of intensifiers is accompanied by 
violations of other writing conventions that further affect the 
credibility of the brief. Or, it could simply be that appellants or 
appellees with difficult arguments (arguments that they believe they 
are likely to lose) tend to lapse into an intensifier-rich mode of 
writing in an attempt to bolster the perceived weaknesses of an 
argument. . . . All of these factors may combine to produce the 
result. Of course, because no causal relationship is shown, it could 
be a yet-unidentified factor. At the very least, the study suggests the 
need for further research and a fruitful source of data for performing 
such research.37
In the end, the Authors hypothesized that any effect was not due to 
the presence of abundant intensifiers per se; rather, it seemed to be a 
response—and maybe an irrational response—to a losing argument: 

34 See id.
35 Id. at 171–72. 
36 Id. at 183–85. 
37 Id. at 184–85 (footnote omitted). 
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[I]t could simply be that appellants or appellees with difficult 
arguments (arguments that they believe they are likely to lose) tend 
to lapse into an intensifier-rich mode of writing in an attempt to 
bolster the perceived weaknesses of an argument. This last 
interpretation is supported by the fact that dissenting opinion writers 
(who are arguing a losing cause) also tend to use more 
intensifiers.38
The Authors came to a similar conclusion in a subsequent study 
that addressed whether a correlation exists between “readability” and 
success on appeal. That study was described in Does the Readability 
of Your Brief Affect Your Chance of Winning an Appeal?39 The 
Authors’ study found that the length of sentences and words, which 
constitutes “readability” based on the Flesch Reading Ease scale,40
probably does not make much difference in appellate brief writing.41
First, the Authors found that most briefs are written at about the same 
level of readability; there simply was not much difference in how 
lawyers wrote appellate briefs when it came to the length of sentences 
and words.42 Second, the readability of most appellate briefs was well 
within the reading ability of the highly educated audience of appellate 
judges and justices.43 Third, the relatively small differences in 
readability were not related to the outcome of an appeal in a 
statistically significant manner.44
The study did show, however, that the opinions of judges and 
justices were less readable than lawyers’ briefs and that the opinions 
of dissenting judges or justices were the least readable of all the 
appellate writing analyzed.45 Ultimately, the Authors concluded that 

38 Id. at 185. 
39 Readability of Your Brief, supra note 9. 
40 The Flesch Reading Ease scale and the Flesch-Kincaid Grade Level scale are two of 
many mathematic readability formulas used to determine whether one text is easier to read 
than another. DUBAY, supra note 11. The various readability formulas use differing 
semantic and syntactic factors to assess readability; the Flesch formulas use the number of 
syllables and the number of sentences in a selected 100-word sample to determine the 
readability of a text. Id. The theory is that more multi-syllabic words and longer sentences 
make a text more difficult to read. For a brief, but thorough and well-researched, 
explanation of readability formulas, their history and their use, see Readability of Your 
Brief, supra note 9, at 148–54 & nn.9–42. 
41 Readability of Your Brief, supra note 9, at 159–62. 
42 Id. at 160. 
43 Id.
44 Id. at 156–57. 
45 Id. at 157–58. 
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944 OREGON LAW REVIEW [Vol. 91, 933 
readability, as determined by the Flesch Reading Ease scale, was a 
non-issue for legal writing at the appellate level.46
Although readability did not appear to be related to outcome, there 
was a mild (but not statistically significant) difference between the 
readability of the courts’ majority and dissenting opinions (p-value = 
0.0772).47 Dissenting opinions were somewhat less readable than 
majority opinions, but the difference was not nearly as pronounced as 
were the differences in intensifier rates.48
So, the verdict on whether writing can affect appellate court 
outcomes is, thus far, a “no.” Nevertheless, this Article proposes that 
the statistically significant difference between winners and losers 
constitutes a subconscious, irrational response to a perceived weak, or 
losing, argument. This difference manifests itself in an intensifier-rich 
mode of writing and (possibly) writing in a less readable style (longer 
words and sentences) by the losers. In other words, the theory of 
argumentative threat proposes that frequent intensifier use and writing 
with longer sentences and words is “loser language”; it reflects a 
defensive emotional response to an expected (in the case of a 
lawyer)—or known (in the case of a judge)—adverse result in an 
appellate case. Both lawyers and judges react similarly to the effect of 
argumentative threat. This theory is illustrated by analyzing majority 
and dissenting opinions of the United States Supreme Court. 

46 Id. at 159–62. 
47 The definition of p-value is the probability of observing a test statistic at least as 
extreme as the one observed, given the null hypothesis. Consequently, a small p-value 
implies that such a large observed difference in mean intensifier rates is very unlikely to be 
due to chance alone. This p-value was based on a test of the difference between two means 
that was proposed by Morrison in 1973. The Morrison test is a variation on the commonly-
used paired t test, but it enables a paired comparison (i.e., dissent vs. majority) when some 
cases are missing a measurement on one of the variables in the pair. Because some 
Supreme Court cases have a majority opinion but no dissent, the Morrison test was most 
appropriate here. See Donald F. Morrison, A Test for Equality of Means of Correlated 
Variates with Missing Data on One Response, 60 BIOMETRIKA 101, 101–05 (1973). 
48 Compare Clearly, Using Intensifiers, supra note 9, at 188 (intensifier usage 
differences in briefs and opinions) with Readability of Your Brief, supra note 9, at158–59 
(readability differences in briefs and opinions). 
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II
THE THEORY OF ARGUMENTATIVE THREAT49
Scientists and scholars have conclusively shown that humans 
respond physiologically and psychologically to perceived threat. This 
response is often called the “fight-or-flight” response.50 The threat 
need not be “real” in order to elicit the “fight-or-flight” response.51
Any perceived threat can actuate fight or flight. One manifestation of 
the “fight-or-flight” response may be linguistic in nature. Linguists 
and other language scholars have found that people who feel 
threatened may also speak and write in a manner that is demonstrably 
different from how the same people would speak or write in the 
absence of a threat.52 The Authors’ theory of argumentative threat 
applies the linguistic response to threat concept to appellate briefs and 
opinions. This Article argues that in their briefs and opinions, lawyers 
and judges seem to react linguistically to a perceived threat. This 
section first addresses current theories of linguistic response to threat. 
It then presents the Authors’ study of Supreme Court opinions as an 
example of argumentative threat, and shows how the Supreme Court 
Justices’ response to argumentative threat is consistent with other 
social psychology theories. In essence, the Justices may respond to 
perceived threats just like everybody else. 

49 The term “argumentative threat” was spawned by the term “social threat,” as used by 
Allen Liska and others in the book, SOCIAL THREAT AND SOCIAL CONTROL. The theory of 
social threat generally posits that attempts to control criminal conduct by a majority 
population increase as the percentage of a minority population increases—regardless of 
whether the increase in minority population is associated with an overall increase in crime. 
SOCIAL THREAT AND SOCIAL CONTROL passim (Allen E. Liska ed., 1992). Social threat 
theory has little application to argumentative threat theory other than both theories suggest 
that the reaction to a perceived threat may be irrational; the reaction does not appropriately 
address the perceived threat and may, in fact, be counterproductive. 
50 Stress: Constant Stress Puts Your Health at Risk, supra note 5; Julia Layton, How 
Fear Works, HOWSTUFFWORKS, http://science.howstuffworks.com/life/fear2.htm (last 
visited Feb. 6, 2013). A more expansive view of “fight or flight” is offered by cultural 
anthropologist Ernest Becker. In his book THE DENIAL OF DEATH, Becker argues “that of 
all things that move man, one of the principal ones is his terror of death,” ERNEST
BECKER, THE DENIAL OF DEATH 11 (1973), which is “all-consuming . . . when we look it 
full in the face,” id. at 15. While his theory is not directly applicable to argumentative 
threat, they do share the common idea that we behave subconsciously in ways to protect 
ourselves from threats. 
51 Robert Sapolsky, Taming Stress, SCIENTIFIC AMERICAN, AT 87, 88 (Sept., 2003). 
52 See infra Part II.A. and accompanying notes. 
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946 OREGON LAW REVIEW [Vol. 91, 933 
A. Linguistic Responses to Perceived Threats 
One way humans react defensively is through changes in their use 
of language. Some of these changes are subtle and may not even be 
consciously implemented. For example, social psychologists Jeroen 
Vaes and Robert A. Wicklund found that this defensive reaction may 
affect how people speak: “[A] general relevant threat can motivate 
people in a linguistic multiculture to conform more rigidly to their 
own language, and hence accentuate their own linguistic 
singularity.”53 In Norway, there are two official languages; one is 
used primarily by the rural population (Nynorsk) and the other by the 
urban population (Bokmål).54 Vaes and Wicklund’s experiment 
involved an experimenter posing as a foreigner in Norway seeking 
help in editing a postcard to his or her Norwegian cousin.55 The 
postcard was a response to a fax from the uncle.56 The participants, 
who were all urban Norwegians (Bokmål speakers), received one of 
two faxes.57 The first contained a positive comment about Norwegian 
educational and ecological policies.58 The second contained a 
negative comment about the same policies and stated that the Swedish 
policy was better.59 The postcard mixed Nynorsk and Bokmål.60 As 
predicted, the participants changed the Nynorsk to Bokmål more than 
twice as often when responding to the negative fax.61 Vaes and 
Wicklund conclude that the experiment showed “a general cultural 
threat produce[d] a defensive, narrowing reaction” that caused the 
participants to emphasize their own language rather than the other 
Norwegian language.62
The phenomenon described by Vaes and Wicklund is generally 
referred to as “linguistic intergroup bias.” Other studies addressing 
linguistic intergroup bias have similarly suggested that language 
changes in response to a perceived threat, in particular, a perceived 
threat to a person’s social identity. Generally, these studies show that 

53 Jeroen Vaes & Robert A. Wicklund, General Threat Leading to Defensive Reactions: 
A Field Experiment on Linguistic Features, 41 BRIT. J. SOC. PSYCHOL. 271, 271 (2002). 
54 Id. at 273–74. 
55 Id. at 274–75. 
56 Id. at 275. 
57 Id.
58 Id.
59 Id.
60 Id. at 275. 
61 Id. at 276–77. 
62 Id. at 277. 
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individuals tend to utilize broad, abstract, and intangible concepts 
whenever they describe positive acts committed by members of 
their social identity and negative acts committed by members of a 
rival collective. In contrast, they refer to specific, tangible details 
whenever they describe negative acts committed by members of 
their social identity and positive acts committed by members of a 
rival collective.63
The idea is that those who agree with us are generally good, and 
therefore we use general terms indicating that their good acts pervade 
the entire group and are the norm. Conversely, a bad act is described 
with specificity so as to limit its application to the specific situation. 
Studies addressing linguistic intergroup bias have shown that when 
a group-threatening statement has been made by hunters against 
environmentalists, or by environmentalists against hunters, the 
“linguistic differentiation in favor of one’s own group was much 
greater when an in-group-threatening message had been delivered.”64
So, a hunter may be described by another hunter as “hurting 
somebody,” while an environmentalist would be described by a 
hunter as being “aggressive.”65 In simpler terms, language is limited 
to a specific incident for the in-group, but is generalized for the out-
group. Interestingly, the hunters “showed a more pronounced 
[linguistic intergroup bias] than environmentalists.”66 Other linguistic 
intergroup bias studies have found the same effect between northern 
and southern Italians.67 Another study that hits closer to home for 
academics found that university professors are also subject to 
linguistic intergroup bias. Professors wrote “nicer” replies to 
“accidentally” misdirected emails when they believed the sender was 
from the professor’s own university.68
B. Justices’ Responses to Perceived Threats 
Lawyers and judges also react defensively when the lawyers 
believe they are likely to lose a case, or, when the judges are writing a 

63 Linquistic Biases, PSYCHLOPEDIA (Jan. 2, 2011), http://www.psych-it.com.au 
/Psychlopedia/article.asp?id=407. 
64 Anne Maass et al., Linguistic Intergroup Bias: Evidence for In-Group-Protective 
Motivation, 71 J. PERSONALITY & SOC. PSYCHOL. 512, 516 (1996). 
65 Id. at 512. 
66 Id. at 516. 
67 Id. at 523. 
68 Jeroen Vaes et al., On the Behavioral Consequences of Infrahumanization: The 
Implicit Role of Uniquely Human Emotions in Intergroup Relations, 85 J. PERSONALITY &
SOC. PSYCHOL. 1016, 1020 (2003). 
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948 OREGON LAW REVIEW [Vol. 91, 933 
dissent (and know that they are losing). The Authors hypothesize that 
this defensive reaction, at least in part, takes the form of increasing 
the use of intensifiers and (maybe to a lesser degree) by using longer 
words and sentences. For judges, this increased use of intensifiers 
could be a form of linguistic intergroup bias in the sense that a 
dissenting judge, alienated from the majority, seeks to show that the 
dissenting argument is “obviously,” “clearly,” and “wholly” superior 
to the opinion of what is now the dissenter’s out-group, the majority. 
The increased use of intensifiers and the use of long sentences and 
words could be a subconscious attempt at showing the “strength” of 
the dissenter’s argument—even though the dissenter consciously 
knows that using more intensifiers is negatively perceived by judges 
and legal readers in general. 
While the Authors found this defensive increase in intensifier use 
at all levels of appellate practice among lawyers and judges,69 the 
United States Supreme Court Justices provide a particularly 
interesting example of the defensive response that occurs when a 
Justice is in the minority and writes a dissenting opinion. The Justices 
all write “worse,” in some sense, when writing a dissenting opinion. 
As part of their previous studies, the Authors analyzed 266 cases 
from the United States Supreme Court, in which the Court issued at 
least one opinion.70 After considering all briefs associated with these 
cases, and eliminating any opinions that were too short to yield 
reliable quantitative text assessment, a total of 526 opinions were 
analyzed.71 The same intensifiers used in the Authors’ intensifier 
article analysis (“very,” “obviously,” “clearly,” “patently,” 
“absolutely,” “really,” “plainly,” “undoubtedly,” “certainly,” 
“totally,” “simply,” and “wholly”) were again used and every effort 
was made to exclude the selected intensifiers when they were not 
used as intensifiers. For example, intensifiers used as legal terms of 
art, such as “clearly erroneous,” were not used. 
The Authors used a test of statistical significance to evaluate the 
difference between intensifier use in the Court’s majority and 

69 Clearly, Using Intensifiers, supra note 9, at 181–84. 
70 The cases analyzed were from February 21, 2006 to June 9, 2009. The 266 Supreme 
Court opinions included the opinions written from the time Justice Alito first participated 
in an opinion of the Court on February 21, 2006, through the opinion of the Court issued 
on June 28, 2007. 
71 The database includes only cases in which the Court issued an opinion. Opinions or 
briefs less than 500 words in length were not included for analysis. 
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950 OREGON LAW REVIEW [Vol. 91, 933 
As shown in Figure 1, all nine Justices use more intensifiers when 
writing a dissenting opinion. Seven of the nine Justices write in a less 
readable style when writing a dissenting opinion.75 While the 
difference in means between majority and dissenting opinions is large 
(0.82 intensifiers per 1,000 words for majority opinions vs. 1.19 for 
dissents, p-value = 0.000004), the corresponding difference in mean 
Flesch Readability scores (30.53 for majority vs. 29.50 for dissents, p-
value = 0.0772) is not statistically significant. 
Even with large differences in mean intensifier rates from majority 
to dissenting opinions, it is also important to note that rates within 
each type of opinion still exhibit a reasonable degree of variability. 
This is depicted by the boxplots76 shown in Figure 2 where it is 
shown that even the most intensifier-prone Justices have also written 
intensifier-free opinions. Similarly, even the most intensifier-averse 
Justice (Justice Ginsburg) has written individual opinions that are in 
the top fifteen percent of intensifier-laden majority opinions and the 
top twenty-five percent of intensifier-laden dissents. 

75 The estimated Flesch Kincaid Grade Level is meant to roughly correspond to the 
level of difficulty, so that a grade level of 12.0 indicates the expected reading level of a 
person in twelfth grade and a grade level of 15.0 indicates the expected reading level of a 
third-year college student. Higher values of the Kincaid Grade Level are associated with 
texts containing longer words and longer sentences. 
76 A boxplot illustrates the distribution of an observed variable. The lower and upper 
ends of the box denote the twenty-fifth and seventy-fifth percentiles of the variable’s 
distribution, with the line in the middle of the box denoting the median (i.e., the middle 
observation). The whiskers extending from the lower and upper ends of the box denote the 
observations in the lowest and highest quartiles of the data; the circles appearing beyond 
the ends of the whiskers denote unusually large or small values (which are typically 
referred to in statistical analysis as “outliers”). 
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952 OREGON LAW REVIEW [Vol. 91, 933 
threat, it appears to be difficult for him to follow his own advice when 
writing a dissent. 
In order to better compare the Justice’s intensifier rates, the 
Authors considered two additional measures. The first is an aggregate 
measure of intensifier usage that the Authors denote the Standardized 
Intensifier Rate (SIR). The SIR is necessary because some Justices 
write for the majority more often than others. For example, during the 
Authors’ study period, Justice Kennedy wrote more than seven times 
as many words for majority opinions as for dissents. At the other end 
of the spectrum, Justice Souter’s total dissenting opinion word count 
is only forty percent larger than his majority opinion word count. 
Consequently, comparing average intensifier rates for all briefs is not 
a reasonable approach for evaluating relative tendency toward 
intensifier usage. The database of Supreme Court opinions considered 
here comprises text from a mix of majority opinions (59% of the 
database’s words), concurrences (8%), and dissents (33%). To 
equitably compare a majority-heavy writer like Justice Kennedy with 
a dissent-heavy writer like Justice Souter, the SIR was created, which 
weights each Justice’s intensifier rates for majority, concurring, and 
dissenting opinions using the 59%-8%-33% split found in the 
database. Thus, the SIR is the simplest measure for overall intensifier 
usage.
The second measure used to compare Justices’ intensifier rate is 
the “Threat-Related Intensifier Rate Increase” (TIRI)—or the “Jekyll-
Hyde” index. The TIRI is the increase in intensifier rate that a Justice 
exhibits when changing from a majority opinion to a dissent. An 
illustration of each Justice’s SIR and TIRI is shown in Figure 3. After 
Justice Kennedy’s most dramatic response to argumentative threat, 
Justice Scalia claims second place among Justices most affected by 
argumentative threat, and Justice Thomas narrowly edges out former 
Justice Souter for third place. Chief Justice Roberts and Justice Scalia 
use many more intensifiers relative to the other Justices, but Justice 
Scalia leaves all the Justices behind with the volume of his 
intensifiers in both majority and dissenting opinions. Justice Scalia’s 
majority intensifier rate is higher than four of the Justices’ dissenting 
rates and his TIRI rate is the second highest among all Justices. 
Therefore, Justice Scalia appears to be particularly subject to the 
subconscious effects of argumentative threat. 
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you characterize the case as a 
lead−pipe cinch . . . "
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954 OREGON LAW REVIEW [Vol. 91, 933 
Similarly, Figure 3 shows that Justice Scalia’s use of intensifiers 
seems to contradict advice he offered to legal writers: “You’ll harm 
your credibility—you’ll be written off as a blowhard—if you 
characterize the case as a lead-pipe cinch with nothing to be said for 
the other side. Even if you think that to be true, and even if you’re 
right, keep it to yourself.”79
Chief Justice Roberts’s and Justice Scalia’s heavier use of 
intensifiers violates the advice of almost every legal writing scholar, 
the advice of the Justices themselves, and it renders their dissenting 
opinions less clear and less credible. However, according to the 
theory of argumentative threat, the Justices’ defensive posture is to be 
expected as a normal response to a perceived threat. Nevertheless, at 
least two researchers theorize that this type of language renders the 
Justices’ opinions more clear (and, therefore, perhaps more credible). 
The authors of Justices and Legal Clarity: Analyzing the Complexity 
of U.S. Supreme Court Opinions80 agree with other researchers, and 
the Authors, that Justice “Scalia employs ‘distinctly different 
rhetorical styles depending on whether he is in the majority or 
dissent,’” and that when he is in the dissent he “‘becomes strident and 
contentious.’”81 But the authors then claim that “all [J]ustices write 
clearer dissents than majority opinions.”82
The Authors’ research shows the opposite: the Justices use 
“clearly” more often as things become less clear (as evidenced by the 
existence of a dissent). And, the reason for the difference is, in part, 
because the Authors (and most other legal writing scholars) claim that 
using more intensifiers adds nothing to an argument, or can even have 
a negative effect on the argument. Therefore, if anything, adding an 
intensifier would render an argument less clear. The authors of 
Justices and Legal Clarity, on the other hand, theorize that “words 
like always, absolutely, and clearly, . . . measure [the degree of] how 
confident one is about something.”83 Generally, higher levels of 
certainty correspond with expressing or portraying issues less 

79 ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF 
PERSUADING JUDGES 13 (2008).
80 Ryan J. Owens & Justin P. Wedeking, Justices and Legal Clarity: Analyzing the 
Complexity of U.S. Supreme Court Opinions, 45 LAW & SOC’Y REV. 1027 (2011). 
81 Id. at 1033 (quoting Edward L. Rubin, Question Regarding D.C. v. Heller: As a 
Justice, Antonin Scalia Is (A) Great, (B) Acceptable, (C) Injudicious, 54 WAYNE L. REV.
1105, 1130 (2008)). 
82 Id. at 1027. 
83 Id. at 1056. 
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2013] When Justices (Subconsciously) Attack: The Theory of Argumentative Threat 955 
and the Supreme Court
complex.84 If more intensifiers make an argument more clear, it is not 
surprising that the authors of Justices and Legal Clarity would 
conclude that Justice Scalia is the most clear opinion writer and 
Justice Ginsburg is the least.85 The Authors’ research, on the other 
hand, implies the opposite. Justice Ginsburg writes more readable 
opinions, uses less intensifiers, and is therefore the more clear and 
credible writer. It is notable that, unlike Justice Scalia, Justice 
Ginsburg is rather consistent in her writing style across majority and 
dissenting opinions—she feels almost no argumentative threat.86 The 
Authors are on the same page as the Justices and Legal Clarity
authors, however, in our mutual agreement that longer words lead to 
less clear opinions.87
In addition to being consistent with theories of linguistic intergroup 
bias, the Justices’ TIRI may also be consistent with other similar 
social psychology theories, which address differences between 
“conservatives” and “liberals.” As a group, the conservative Justices 
use substantially more intensifiers than the liberals and also seem to 
feel more threatened when writing for the dissent than do the liberals. 
It is impossible to say whether this tendency is a phenomenon unique 
to these nine individuals or whether it is due to differences in 
conservative versus liberal approaches to legal reasoning. But the 
phenomenon may be due to the general tendency of conservatives to 
react differently to a perceived threat than liberals. Or it may be that 
the liberals (more often in the minority during the study period) have 
had—to their chagrin—more practice in writing measured dissents. 
The results, with respect to the liberal and conservative groups of 
Justices, seem to be consistent with the theories of Social Dominance 
Orientation and Right Wing Authoritarianism. Both theories posit that 
conservatives tend to accept or embrace a more authoritarian position 
in response to threat.88 The increased use of intensifiers could also be 

84 Id.
85 Id. at 1043. 
86 Id. at 1043–45; supra Figures 1, 2. 
87 Owens & Wedeking, supra note 80, at 1056. 
88 See, e.g., Bob Altemeyer, The Other “Authoritarian Personality,” 30 ADVANCES 
EXPERIMENTAL SOC. PSYCHOL. 47 (1998); Richard M. Doty et al., Threat and 
Authoritarianism in the United States, 1978–1987, 61 J. PERSONALITY & SOC. PSYCHOL.
629 (1991); John Duckitt & Kirstin Fisher, The Impact of Social Threat on Worldview and 
Ideological Attitudes, 24 POL. PSYCHOL. 199 (2003); Miriam Matthews et al., A
Longitudinal Test of the Model of Political Conservatism as Motivated Social Cognition,
30 POL. PSYCHOL. 921 (2009); Stephen M. Sales, Threat as a Factor in Authoritarianism: 
An Analysis of Archival Data, 28 J. PERSONALITY & SOC. PSYCHOL. 44 (1973). But see 
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956 OREGON LAW REVIEW [Vol. 91, 933 
understood as an increased use of authority in response to threat. The 
linguistic intergroup bias study on hunters and environmentalists 
discussed above noted a “more pronounced” linguistic intergroup bias 
among the hunters.89 This interpretation of the study, however, 
assumes that hunters tend to be more conservative than 
environmentalists. 
Apart from argumentative threat, a Justice’s view of the role of a 
dissent could also influence the number of intensifiers used. Justice 
Ginsburg views the role of a dissent as a chance to speak “when 
important matters are at stake.”90 On the other hand, for Justice 
Scalia, the most important reason for dissenting is that it “renders the 
profession of a judge . . . more enjoyable.”91 Justice Scalia further 
noted, 
To be able to write an opinion solely for oneself, without the need 
to accommodate, to any degree whatever, the more-or-less-differing 
views of one’s colleagues; to address precisely the points of law 
that one considers important and no others; to express precisely the 
degree of quibble, or foreboding, or disbelief, or indignation that 
one believes the majority’s disposition should engender—that is 
indeed an unparalleled pleasure.92
While both Justice Ginsburg and Justice Scalia believe that a dissent 
should be reserved for important matters, Justice Scalia seems to 
relish the opportunity to “stick it to the majority” when addressing 
important matters. This may, in part, account for his higher use of 
intensifiers when dissenting. 
The Justices’ reactions to argumentative threat are also consistent 
with the Justices’ opinions in two recent—and significant—Supreme 
Court cases: Citizens United93 and National Federation of 
Independent Business v. Sebelius94 (Obamacare). In both opinions, 
the majority and dissent opinion writers stay close to their overall 
trends. The graph in Figure 4 illustrates how the intensifier rates 

Kimberly Rios Morrison & Oscar Ybarra, Symbolic Threat and Social Dominance Among 
Liberals and Conservatives: SDO Reflects Conformity to Political Values, 39 EUR. J. SOC.
PSYCHOL. 1039, 1050–51 (2009) (suggesting that “the seemingly egalitarian responses that 
highly identified, hierarchy-attenuating group members demonstrate under threat may be, 
in a sense, group-serving biases in disguise”). 
89 Anne Maass et al., supra note 64, at 516. 
90 Ruth Bader Ginsburg, Lecture, The Role of Dissenting Opinions, 95 MINN. L. REV.
1, 7 (2010). 
91 Antonin Scalia, Dissents, ORG. AM. HISTORIANS MAG. HIST., Fall 1998, at 18, 22. 
92 Id. at 22–23. 
93 Citizens United v. FEC, 130 S. Ct. 876 (2010). 
94 Nat’l Fed’n of Indep. Bus. v. Sebelius, No. 11-393 (U.S. June 28, 2012). 
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958 OREGON LAW REVIEW [Vol. 91, 933 
the joint dissent.96 Jan Crawford’s sources, which claim that the 
dissenters “divided up parts of the opinion, with Kennedy and Scalia 
doing the bulk of the writing,”97 appears to be the most likely 
scenario based on the dissenting opinion’s IR. 
Justice Kennedy’s Citizens United majority opinion tracks his 
average IR almost perfectly, while Justice Stevens appears more 
defensive than his average IR for dissents. These findings are 
consistent with the well-known fact that Justice Stevens was (and 
remains) particularly bitter about the Court’s decision in Citizens
United.98 He even took the unusual step of reading parts of his dissent 
on the day the opinion was announced.99
The statistically significant propensity for a Justice to increase his 
usage of intensifiers when on the losing end of the argument is 
illustrated in Figures 1, 2, and 4. Figure 3 shows that although each 
Justice has his or her own mean rate of intensifier usage, both Justices 
with relatively low standardized intensifier rates (e.g., Justice 
Kennedy) and Justices with relatively high standardized intensifier 
rates (e.g., Justice Scalia) are capable of dramatic increases in 
intensifier usage when experiencing argumentative threat. Although 
this Article focuses on Supreme Court Justices’ use of intensifiers, the 
Authors believe that the theory of argumentative threat applies 
equally to lawyers who think they may be writing a losing brief. 
However, it should be noted that lawyers may have an additional 
rationale, apart from an emotional defensive response to a perceived 
losing argument, for writing differently in a losing brief. Lawyers 
writing a brief in an appeal that they think they may lose may also be 
writing in an intensifier-rich and less readable manner to impress their 
client and show the client that they are being strident and intellectual 
in an effort to win the case. Even so, this possible rationale would still 
constitute a defensive response to threat. 
CONCLUSION
Legal readers do not like intensifiers, long sentences, and long 
words. Nevertheless, when the legal reader becomes the legal writer 

96 Paul Campos, Roberts Wrote Both Obamacare Opinions, SALON.COM (July 3, 2012, 
6:13 PM), http://www.salon.com/2012/07/03/roberts_wrote_both_obamacare_opinions/. 
97 Crawford, supra note 95. 
98 See Mike Sacks, Citizens United Attacks from Justice Stevens Continue,
HUFFINGTON POST (May 31, 2012, 2:44 PM), http://www.huffingtonpost.com/2012/05 
/30/citizens-united-justice-stevens_n_1557721.html. 
99 Id.
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and the Supreme Court
and feels threatened with losing an appeal, or being on the dissenting 
side of a judicial opinion, the threatened legal writer will 
subconsciously resort to using more intensifiers, and maybe longer 
words and longer sentences, in an irrational attempt to “attack” the 
winning side, or to defend the losing argument. This response is 
explained by the Authors’ theory of argumentative threat, and the 
study presented in this Article supports that theory; alienated from the 
majority, a Supreme Court Justice subconsciously (and irrationally) 
resorts to the universally censured intensifier in an attempt to bolster 
the losing argument. The theory of argumentative threat is consistent 
with social psychology theories suggesting that language use changes 
in response to a perceived threat. 
More research needs to be done to further explore the impact of 
argumentative threat on legal writing. For example, research is 
needed to ascertain whether judges can actually sense the losing 
nature of a brief by its increased use of intensifiers. Nevertheless, it is 
fair to conclude that winners and losers do write differently in 
appellate briefs and opinions depending on the perceived threat to the 
writer’s legal argument. As a practical matter, it may be constructive 
to consider these differences when writing appellate (and by 
extrapolation trial) briefs and opinions. It may also be helpful to track 
personal intensifier usage patterns in both winning and losing briefs, 
or majority and dissenting opinions, to examine the extent to which a 
brief or an opinion reveals any subconscious reaction to 
argumentative threat. 
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