Supreme Court Litigants and Strategic Framing Justin Wedeking University of Kentucky Although litigants invest a huge amount of resources in crafting legal briefs for submission to the Supreme Court, few studies examine whether and how briefs influence Court decisions. This article asks whether legal participants are strategic when deciding how to frame a case brief and whether such frames influence the likelihood of receiving a favorable outcome. To explore these questions, a theory of strategic framing is developed and litigants’ basic framing strategies are hypothesized based on Riker’s theory of rhetoric and heresthetic as well as the strategic approach to judicial politics. Using 110 salient cases from the 1979–89 terms, I propose and develop a measure of a typology of issue frames and provide empirical evidence that supports a strategic account of how parties frame cases. D o litigant briefs affect Supreme Court decision making? There is an extensive literature devoted to gauging how much influence parties have on U.S. Supreme Court decisions. For example, scholars have examined the economic status of the parties (Sheehan, Mishler, and Songer 1992), litigant resources (Wahlbeck 1997), attorney experience (McGuire 1995) and attor- ney status (McGuire 1993), the bias of the Court toward petitioners (Palmer 1982; Provine 1980), and the qual- ity of legal argument given at oral argument (Johnson, Wahlbeck, and Spriggs 2006). 1 However, these explana- tions ignore the most tangible and substantive object from the litigants, the written briefs (but see Corley 2008). This is surprising given that legal arguments from the parties’ briefs presumably provide a basis for the Court to make sound and legitimate legal decisions (Epstein, Segal, and Johnson 1996). Given that litigant briefs are neglected, it should not be surprising that we know little about what policy the Court will enact. For example, Bonneau et al. write, “Af- ter a half century of research on decision making by the Supreme Court, a critical question remains unanswered: what policy will be prescribed by the Court’s major- ity opinion in each case?” (2007, 890). One exception, Justin Wedeking is Assistant Professor of Political Science, University of Kentucky, 1661 Patterson Office Tower, Lexington, KY 40511 (justin.wedeking@uky.edu). Thank you to James Brent, Brad Canon, Wonbin Cho, James Druckman, Chris Federico, Mike Fix, Rich Fording, Timothy Johnson, Joanne Miller, Mark Peffley, Kirk Randazzo, Eric Waltenburg, the AJPS editor Marianne Stewart, and the anonymous reviewers for helpful comments and recommendations on previous versions. I also thank the Center for the Study of Political Psychology at the University of Minnesota and the University of Kentucky for providing funding to purchase software used in this project. All views and mistakes are mine. A previous version of this article was presented at the 2007 Midwest Political Science Association National Conference. 1 Petitioner and appellant (or respondent and appellee) are used interchangeably. 2 See Druckman (2001a) for a discussion of the various definitions of frames. however, found that how the parties frame the law and their legal arguments mattered a great deal for explain- ing changes in the law (Epstein and Kobylka 1992). This suggests that a particularly productive strategy for inves- tigating the Supreme Court as a policy maker should first examine how litigants select the issue frames they employ in their briefs and then determine whether there is a con- nection between those frames and the Court’s decisions. What are frames and to what extent are they em- ployed in the legal arena? Frames are defined as a small collection of related words that emphasize some aspect of an issue at the expense of others. Framing is the selec- tion of one particular frame over another, and framing effects occur when a frame shapes the thoughts and be- havior of others. 2 Unfortunately, relatively little is known about how political elites adopt some frames over others, and scholars readily admit that we need a better under- standing of the strategic nature with which elites employ frames (Druckman 2001a; Gamson 2001). In fact, Druck- man argues that “an understanding of framing requires linking how citizens psychologically process frames with how elites strategically choose frames” (2001a, 247). Issue frames are important because they structure expectations (Tannen 1993) and establish a common language around American Journal of Political Science, Vol. 54, No. 3, July 2010, Pp. 617–631 C  2010, Midwest Political Science Association ISSN 0092-5853 617