Rhetorical Styles on the Fuller Court

Abstract

Formalism is the label regularly used to describe judicial opinions of the late nineteenth century.' The label is descriptive when used in contradistinction to instrumentalism. Use of the label, however, has certain drawbacks. For example, there is little objective or empirical evidence to support the application of the two antithetical terms. In addition, a single term cannot reflect whatever diversity of styles may exist among the judges of a single court. This article describes the results of an attempt to rectify those two drawbacks and to determine whether the Justices of the Supreme Court at the turn of the century-while Melville Fuller was Chief Justicewere as monochromatic as the single term formalism would suggest. The article relies upon objective measurements to demonstrate that there was a variety, one might say a richness, of styles among the Justices of the Fuller Court. The article is based upon a study of a sample of cases from eleven terms, from 1895 through 1905, of the Fuller Court. The sample was made up of the cases involving a challenge to the constitutionality of a statute, including state, federal, and territorial. In all there were 286 cases.2 The terms were selected because they were the terms during which Justices Brown and Peckham sat together. Those Justices were of interest because preliminary research had suggested that their styles might represent the extremes on the Court. They were also the terms with the most continuity among the