Ready to Collect

It’s takeByrnesn me a wBrudneyDoylehile, but I’ve finally pulled together the necessary materials to conduct my study. As an essential overview, I’ve decided to test the influence of Supreme Court clerks on the opinions of their justices by direct analysis of authorship. In my initial research I stumbled across a study conducted by Federick Mosteller and David L. Wallace in 1964 titled Inference and Disputed Authorship. It’s goal was to apply a then relatively unused form of statistical probability analysis called Bayesian Theory. They applied the theory to a set of 12 papers from theĀ Federalist Papers, whose authorship had been disputed. Some claim that James Madison had written all 12, others that he and Alexander Hamilton had split them. Wallace and Mosteller focused on the theory that the frequency of certain Rutledge“function words” (i.e. is, that, in, for, of) could constitute an authorial fingerprint, that, when analyzed, could determine authorship. This experiment took them several years to develop and years more to conduct, but with much less advanced statistics, a smaller sample size, and faster technology, I hope to conduct what is essentially a small scale version of their experiment.

For this particular experiment, I have chosen two justices, James F. Byrnes and Wiley Blount Rutledge, and two clerks, James E. Doyle and Victor Brudney. I have chosen these justices for a few reasons. First, they both served in the early to mid 1940s, so they are long dead and most of their immediate relatives are as well. As a result, if my potentially controversial findings do find their way into a publication, I’m not likely to annoy a living justice by suggesting that his or her work may not have been their own. Second, and much more importantly, these justices uniquely only had one clerk per year for the years that I am examining, which makes by calculations infinitely easier than if they had the typical four. Justice Byrnes also only served for one and a half years before resigning, so his term is nicely contained within a much shorter set of parameters and I am actually able to examine his entire tenure on The Court in my very short experiment.

At this point I have assembled the majority of the relevant documents, including the opinions I mean to test, as well as the documents of verified authorship for each justice and clerk so that I can establish a function word use frequency for each of them. At this point I will now begin processing those documents and hopefully receive legible data. Til next post.


Mosteller, Frederick, and David L. Wallace. 1964. . 3rd ed. Chiacgo, IL: University of Chicago.


  1. I commend thoughtful choice of justices, in order to avoid future conflict as you mentioned, and I am interested in your findings as you continue this research. I think this research is especially relevant with the pattern of skepticism over faith in government recently. The analysis of the written word is fascinating, and I am curious to see if you can find significant differences or if the analysis will align with your personal understanding of the language when reading it. As a math minded person, I’d also love to read more about how your statistical probability analysis functions in this context. I am most interested in what sorts of conclusions you make from this data, considering the subjectivity of language and the uncertain nature of probability. Good luck and looking forward to the next post!

  2. catherine says:

    Interesting idea! Are you looking at anything else–syntax, sentence/word length, etc–or just function words? I imagine only looking at the one variable makes for a neater and more contained study. What do you think the implications are, if you find that the clerks had more authorship than expected?

  3. fjbabetski says:

    This is an intriguing project that asks important questions about the distribution of power in our government. I think that your reasoning for choosing your justice/clerk pairings is solid. Perhaps in a few decades you will be able to revisit this topic and apply your research technique to some of today’s SCOTUS justices. I personally would be interested to see if your ideas apply to the writings of, say, Antonin Scalia. He was known for his strong, caustic rhetoric and I wonder if he managed to find one or more clerks that could also write that way.

    I would also be interested to see how this topic applies to judicial rulings/opinions in lower level courts to see if their less publicized nature has any impact on the degree of clerk involvement relative to those of the Supreme Court.

    Looking forward to your future posts!

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