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Women Lawyers Seek to Persuade SCOTUS With Personal Experiences

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By Casey C. Sullivan, Esq. on February 05, 2016 10:11 AM

"I am an attorney because I had an abortion," one female lawyer tells the Supreme Court. "The Court's Webster decision, issued around the same time I was seriously considering suicide rather than being forced to give birth against my will, saved my life," another explains.

Those are just two of the stories of more than 100 women attorneys who signed an unprecedented Supreme Court brief, explaining how their personal experiences with abortion impacted their lives. The amicus brief is personal, moving, and something we've never seen before -- the direct, emotional, and incredibly intimate experiences of lawyers being used to help sway the law. Will it work?

The Personal Is Persuasive

As the Supreme Court prepares to hear arguments over Texas's highly restrictive abortion restrictions, 113 women in law have signed an amicus brief detailing the importance family planning has had in their lives and professions.

They are attorneys, academics, law students, and judges, all who believe that Roe v. Wade's promise of bodily autonomy and women's full participation in economic and social life "has enriched not just individuals like Amici, but this esteemed profession, and our nation itself."

Not all of the 100-plus attorneys who signed the brief detail their experiences with abortion, but those who do share powerful stories. They are individual, personal, and emotional stories, such as the public defender whose abortion at age 16 allowed her to break the familial cycle of teenage pregnancy, and the law professor whose abortion helped her to escape an abusive partner and finish her studies.

The stories detailed in the brief have already had an effect on the public, but will they sway the justices?

Perhaps. The Supreme Court is not above examining the individual impacts of its legal decisions. Justice Sotomayor's own experience as a minority woman has been credited with forestalling a negative ruling on affirmative action, for example.

In an unpublished dissent in 2012's Fisher v. University of Texas, Austin case, Justice Sotomayor detailed her experience growing up as a Puerto Rican girl in the Bronx. The message was direct. In gist: "You haven't lived it and you don't get it." And it caused the Court to at least delay ruling negatively on educational affirmative action. (Fisher is back before the Court this term.)

Similarly, the Supreme Court's decision in Grutter v. Bollinger, upholding affirmative action admissions policies at the University of Michigan Law School, is credited in part to military leaders who argued that a blow to racial diversity could compromise their ability to lead American's troops.

Presidential candidates, too, have been successful at pulling the heartstrings of Supreme Court justices, though perhaps not through as confessional of amicus briefs. Former Justice Sandra Day O'Connor may have been swayed to hand George W. Bush the presidency during 2000's contested recount in part because she felt he'd been mistreated -- at least according to Jeffrey Toobin.

Emotions Don't Matter, the Law Does

On the other hand, when it comes to convincing the Supreme Court justices, emotional appeals often fall short -- and there's empirical proof to back it up.

Recently, Supreme Court studies have been invigorated by the use of linguistic analysis on briefs and opinions. We now know who the funniest justices are and which borrow the most from the language of attorneys before them.

One recent study shows that emotion just doesn't work. While the justices themselves can be emotional, purple, sharp-tongued, and acerbic, a forthcoming study to be published in the Journal of Law and Courts finds that "emotional language conveys a lack of credibility to justices and thereby diminishes the party's likelihood of garnering justices' votes."

The four authors, academics from Michigan State, Notre Dame, the University of Wisconsin, and Oklahoma State, use automated textual analysis programs to show that emotional language is less persuasive than cold, cruel legal reasoning.

Does that mean the 113 female attorneys' amicus brief is doomed? Probably not. For while the study's authors hypothesize that emotion conveys a "lack of credibility," the very nature of the attorneys' brief shows their bona fides -- they are, to repeat, successful partners, public defenders, law professors, and judges. We doubt that the Supreme Court will readily dismiss their experiences.

But we could be wrong. The case, Whole Women's Health v. Cole, is scheduled for oral arguments in March. It will likely be decided by June. We'll be watching closely.

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