Stancetaking in the U.S. Supreme Court’s abortion jurisprudence (1973-present): epistemic (im)probability and evidential (dis)belief

Abstract

Abstract This article investigates stancetaking by judicial opinion writers in the U.S. Supreme Court’s abortion jurisprudence. It examines the performative use of two kinds of stance evaluations, i.e., epistemic (im)probability and evidential (dis)belief. Using several sub-corpora, it contrasts the previously mentioned stance evaluations in majority opinions (168,329 words) and dissent opinions (105,517 words), thus contributing to a further understanding of the common law phenomenon of separate opinion writing. In light of the court’s decision to overrule this area of law and return it to the state level, this article also contrasts the use of performative stance evaluations in relation to two key jurisprudential issues: viability and state interests. The results show that dissent writers used a significantly greater number of stance evaluation markers. Although confidence levels varied across the different results, dissent writers also used significantly greater amounts of high certainty/strength markers when responding to majority opinions. This represented a kind of discursive escalation in which dissent writers diverged from majority opinions and expressed stronger counterstances. The article closes with a discussion of the major implications for the current law and directions for discourse research in a post-Roe legal landscape.