1108827

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DCM0010.1177/17504813221108827Discourse & CommunicationMcKeown

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Discourse & Communication

A comparative investigation 2022, Vol. 16(6) 652­–669

© The Author(s) 2022

of metadiscursive clarifying
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DOI: 10.1177/17504813221108827
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devices in the abortion journals.sagepub.com/home/dcm

discourse of the U.S. Supreme

Court

Jamie McKeown
The Hong Kong Polytechnic University, Hong Kong

Abstract
Based on previous research that identified metadiscursive clarifiers as a means of discursive control
and subversion, this study investigates the use of the devices in the abortion discourse of the
U.S. Supreme court. It examines four sub-genres of judicial opinion (majority opinions, dissents,
regular concurrences, and special concurrences) and their contribution to the development of
this area of law. The quantitative analysis reveals that the separate opinions contained significantly
more clarifying devices than the majority opinions. This represented a missed opportunity for
majority writers to control positions asserted in separate opinions. More qualitatively oriented
analysis shows the use of the devices as reflecting the nature of the sub-genres examined: regular
concurrence writers used clarifiers to support the majority opinion; special concurrence and
dissent writers both used clarifiers to attack the majority opinion. The analysis also reveals that
clarifiers often reveal prescient tensions within the law; positions expressed with the use of the
devices often became majority positions in subsequent cases.

Keywords
Abortion law, clarifying, discourse targets, judicial discourse, reflexive metadiscourse, Roe v
Wade, SCOTUS, separate opinions, written dialog

Introduction
Through written legal opinions, fundamental rights can be granted, restricted, or denied.
The high-stakes nature of this form of discourse can be seen in the capacity of courts to

Corresponding author:
Jamie McKeown, Department of English, The Hong Kong Polytechnic University, Hung Hom, Kowloon,
Hong Kong.
Email: Jamie.mckeown@polyu.edu.hk
McKeown 653

bind entire populations, lower courts, future courts, legislatures, and elected govern-
ments. Nowhere is this currently more apparent than in the abortion jurisprudence of the
United States of America (hereafter the U.S.1). Unlike other societies in which abortion
liberalization arrived via referenda or legislation, society-wide reform in the U.S. was
achieved via litigation. In the 1973 landmark decisions of Roe v Wade and Doe v Bolton,
the U.S. Supreme court (hereafter SCOTUS) recognized that the constitutional right to
privacy included the choice as to whether to bear or beget a pregnancy. Roe v Wade and
Doe v Bolton provided strict constitutional protection to the abortion choice – only
allowing for state regulation in the third trimester of pregnancy and after the fetus had
become viable (i.e. able to survive outside of the womb). Granting strict constitutional
protection was supposed to place the issue beyond contention. Instead, a frequently
divided SCOTUS (see Ziegler, 2020: XI–XIII) has been drawn into a prolonged interac-
tion with litigants seeking to clarify (and restrict) abortion rights. This study examines
the metadiscursive expression of such clarifications in SCOTUS opinions and their con-
tribution to the development of this area of law.
SCOTUS must justify its decisions in publicly available written judgments (Corley,
2010: 12) which announce the outcome (i.e. who wins or loses) and explain the legal
reasoning behind the decision. In line with common law tradition, SCOTUS places ‘no
formal constraints [on]. . .each judge to speak out separately’ (Ginsburg, 1990: 133). In
other words, SCOTUS judgments can contain multiple opinions expressing conflicting
views as to which party should have won or on what grounds the case should have been
decided. Sometimes these separate opinions can come to represent the law as when
SCOTUS overrules itself or congress legislates on the issue. Goźdź-Roszkowski (2020:
383) notes that analysts of legal discourse have largely overlooked the phenomenon of
separate judicial opinions, thus warranting investigation of these discrete forms. In this
study, I will examine four types of SCOTUS opinion: majority opinions, regular concur-
rences, special concurrences, and dissents (see next section for explanation). It should be
noted that the distinction between the two basic types of concurring opinions has been
neglected by legal scholars (Corley, 2010: 38). This study thus contributes to a greater
understanding of concurring opinions. As noted by Mauranen (2021), the investigation
of metadiscourse in dialogic data ‘has remained extremely rare’ (p. 14). In extending the
study of metadiscourse to written dialog, this study ‘dig[s] deeper into the concept and
manifestations of interactionality in metadiscourse’ (Mauranen, 2021: 14).
In writing opinions, judicial writers strive for clarity (see Epstein et al., 2008: 371–
372; Fix and Fairbanks, 2020: 813). SCOTUS opinions must be sufficiently clear so that
impacted parties can understand how to order their lives accordingly and lower courts
can apply the law. Nevertheless, when the court does not issue a unanimous opinion, the
activities involved in building a majority consensus (Owens and Wedeking, 2011) often
involve trade-offs and compromised positions that can contribute to ambiguity (Corley,
2010: 52). Metadiscourse2 has an inherent clarifying function (Hyland, 2005: 92) which
makes it particularly suitable for the investigation of judicial opinion writing. That said,
in this study, I examine the use of a specific subcategory of reflexive metadiscourse, that
is, clarifying (Ädel, 2006: 75). Previous research (McKeown, 2021) has shown clarify-
ing devices as highly frequent in judicial discourse and as devices of discursive control
and subversion. Broadly understood, clarifying can be defined as explicit attempts by
654 Discourse & Communication 16(6)

communicators to specify what is or is not being communicated. Ädel (2006: 88) notes
that the devices are particularly useful to strategically-minded communicators. Given the
potential impact of judicial opinions, we may expect strategically-minded SCOTUS
writers to exert effort in specifying clearly what is or is not being communicated. This is
especially the case, as in the data examined here, where the court does not speak unani-
mously, that is, publishes separate opinions in the same judgment. In furthering the
understanding of clarifying devices in written dialog, I draw on the concept of discourse
targets from Mauranen (2001).
In this study, I will compare the use of metadiscursive clarifying devices in four types
of SCOTUS judicial opinion. In doing so, I will answer the following research
question:

How do judicial opinion writers use targeted clarifying devices in SCOTUS abortion
discourse?

The research question will be both quantitatively and qualitatively explored. In the fol-
lowing two sections, I will discuss the core concepts that underlie this study. This will
be followed by an explanation of the data and analytical procedure. I will then present
the quantitative findings, the significant results of which will be more qualitatively
examined. Finally, I will conclude by discussing the implications for the study of reflex-
ive metadiscourse, legal discourse, and legal practice, as well as directions for future
research.

SCOTUS opinion writing and judicial discourse

After oral arguments3 are heard, the judges presiding over a given case take a preliminary
vote in private. In cases where SCOTUS does not issue a unanimous opinion (i.e. all of
the Justices agree on the outcome and rationale of the decision), the case is decided by a
majority of judges. Under SCOTUS writing arrangements, a judge in the majority is
nominated to write the opinion, which, after circulation and deliberation, the other judges
in the majority join (Baum, 2018: 337). Majority opinions form the binding authority in
a given case, that is, become law. As already stated, common law tradition allows judges
to write separate opinions. Judges joining the majority opinion can simply join it without
further comment. Judges in the majority can also write a separate concurring opinion
(which other judges can also join). There are two types of concurring opinion: regular
and special. A regular concurring opinion agrees with the outcome and the rationale of
the majority opinion (Corley, 2010: 24). A special concurring opinion agrees with the
outcome but not the rationale of the majority opinion (Corley, 2010: 24). Those who do
not join the majority can write a dissenting opinion (which other judges in dissent can
also join). A dissenting opinion disagrees with both the outcome and the rationale of the
majority opinion (Corley, 2010: 5). In short, separate opinions are essentially defined in
relation to the majority opinion and this relationship will serve as the quantitative con-
trastive variable in this study, that is, the frequency results of the separate opinions will
be compared to those of the majority opinions.
McKeown 655

Corley (2010: 96) calls for greater examination of how the content of different types
of judicial opinions are crafted. Whilst language scholars have enquired into the content
of judicial opinions, with notable scholarship in corpus studies (e.g. Bhatia et al., 2004;
Finegan, 2010), comparative studies (e.g. Cheng and Cheng, 2014), and areas like stance
(e.g. Goźdź-Roszkowski, 2017), the present study fills two principal gaps in the judicial
discourse literature. Firstly, as already stated, just a few studies have examined separate
opinions. For example, Goźdź-Roszkowski (2020) comparatively examines dissents in
Poland’s supreme judicial body and SCOTUS. McKeown (2021) examines SCOTUS
majority and dissent opinions. Although, Szczyrbak (2014) examines SCOTUS concur-
ring opinions, she does not distinguish between the two types of concurrences. Secondly,
despite showing analytical promise (e.g. see Han, 2011) metadiscourse is relatively
underexplored in legal discourse studies.

Reflexive metadiscourse and discourse targets

Research into metadiscourse falls into two schools the so-called broad/interpersonal
school, which is often associated with the work of researchers such as Kopple (1985) and
Hyland (2005); and the so-called narrow/reflexive school which is often associated with
the work of researchers like Mauranen (1993) and Ädel (2006). Although the schools are
often presented in terms of difference, we should not lose sight of the similarity between
the two (e.g. both are concerned with discourse management and audience interaction).
The major difference between the two is that narrow school models do not include
aspects of stance (e.g. attitude markers) that are included within broad school models
(e.g. Lee, 2021).
I subscribe to the narrow/reflexive school of metadiscourse. Narrow/reflexive models
of metadiscourse are based upon the fact that humans can perform a linguistic curve in
their communication, that is, use communication to refer to communication. As stated by
van Dijk (2008), ‘language users represent not only settings, themselves and other par-
ticipants, as well as their intentions, goals and knowledge, but also, reflexively, their
ongoing talk or text’ (pp. 117–118). Proceeding from this insight, reflexive models of
metadiscourse are concerned with ‘the various discourse functions communicators enact
when they explicitly refer to themselves (as communicators) and to their communication
(as communication)’ (McKeown, 2021: 224). I principally draw upon the approach of
Ädel (2006, 2008, 2017). Although Ädel expresses nuance in relation to specific genres,
her work specifies several interrelated conditions an item must meet in order to be clas-
sified as metadiscourse. First, the item must be reflexive of communication or a com-
municator. Secondly, the item should refer to something within the current communicative
situation (i.e. the current code/text or a current communicator). Third, the discourse item
must be explicit (i.e. expressed in words instead of things like numbers or symbols).

Clarifying devices
As already mentioned, I will look at the specific subcategory of clarifying found in Ädel
(2006). According to Ädel, the subcategory of devices ‘mark a desire to clarify matters for
the reader. . .[and] are motivated by a wish to avoid misinterpretation’ (Ädel, 2006: 61).
656 Discourse & Communication 16(6)

In terms of (monologic) function, clarifying devices are particularly important for dealing
with the implications of one’s arguments (Ädel, 2006: 75). In Ädel’s earlier taxonomies,
clarifying devices are placed in the writer-reader category (e.g. Ädel, 2006: 61, 2008: 49).
The writer-reader category contains a collection of markers in which the writer persona
attempts to influence the (imagined) reader through mock interaction. In Ädel (2010)
clarifying devices are presented as metalinguistic commentary:

‘clarifying here does not refer to a specifically interactive function, which is why it is not
classified as a type of References to the audience; it involves examples of the addresser wishing
to specify what he or she is saying (or not saying)’ (p. 84).

A practical effect of circumscribing the category more narrowly, as in Ädel (2010), is

that the interactive dimension of clarifying devices is excluded from analysis. Whilst I
agree that at its core, the subcategory concerns explicit attempts by communicators to
avoid misinterpretation and increase the precision of communication (see Li and Xu,
2020: 53), a more expansive view of clarifying is taken here. In dialogic data, that is,
where discourse participants are involved in real interaction clarifying devices can be
used beyond managing one’s own discourse. This can include managing the discourse of
a participant and general management of the communicative situation (as in McKeown
and Ladegaard, 2020: 19). A more expansive conception of clarifying devices necessi-
tates a discrimination between the things a communicator can target when using the
devices.

Discourse targets
I draw upon Mauranen’s (2001) classification of metadiscursive targets. Although
Mauranen’s tripartite distinction was developed using spoken data, I see no reason why
it cannot be applied to written data. According to Mauranen (2001: 171–173), metadis-
course can be used in relation to three targets: the communicator’s discourse (i.e. mono-
logic orientation); the discourse of an interlocutor (i.e. dialogic orientation); or the
general communicative situation (i.e. interactive orientation). In monologically targeted
metadiscourse, the primary focus is on the judicial opinion writer’s discourse (e.g. clari-
fying something in the writer’s current discourse). In dialogically targeted expressions,
the judicial opinion writer responds to an interlocutor’s discourse (e.g. clarifying a point
in another opinion from the current judgment). In interactively targeted expressions, the
judicial opinion writer attempts to manage the current interaction (e.g. clarifying the
overall nature of the current discourse).
Mauranen (2012) notes that when analysts apply metadiscourse to dialogic data, the
‘key parameters are immediately altered. . .with inevitable consequences for analytical
models’4 (p. 171). As analysts begin to push new ways of looking at existing categories,
like when they distinguish between discourse targets, categories like clarifying could
look very different to their use in static genres (Mauranen, 2021: 11). For instance, I
observe the use of the devices to clarify what communicators are not saying (i.e. mono-
logic). I also observe the current communicator’s frequent use of the devices to clarify
what other communicators are not saying (i.e. dialogic).
McKeown 657

Data and method

I collected data from two open domain sources: the Cornell Legal Information Institute
(as in Goźdź-Roszkowski, 2020), and FindLaw.Com (as in Goźdź-Roszkowski, 2017). I
collected 40 post-Roe and Doe SCOTUS opinions concerning abortion (217,685 words
in total). Using these opinions, I compiled four sub-corpora based on the types of sepa-
rate opinions examined here: 10 majority opinions (76,807 words), 10 regular concur-
rences (11,981 words), 10 special concurrences (50,766 words), and 10 dissents (78,141
words). Each sub-corpora contained five conservative and five liberal leaning opinions.
As in McKeown (2021), I only included sections of the judgments containing the written
judicial opinions, that is, the parts which are written by the judges to explain ‘the law as
applied to the case. . .[providing] the reason on which the basis of the decision is made’
(Goźdź-Roszkowski, 2017: 98). Semi-formulaic parts such as headnotes and the proce-
dural history were excluded as, unlike the opinions, these are not legally binding.

Analytical steps
All opinions were closely read. During the close reading, I used the UAM Corpus tool.5
I used the annotation functionality to identify the metadiscursive element with a clarify-
ing function (step 1) and annotate each device according to its discourse target (step 2).
In all examples, the metadiscourse and the relevant co-text will be underlined.

Step 1: Identification of metadiscursive elements with a clarifying function.  Examples 1 and

2 are taken from the same opinion.

Example 1

As § 12S provides for involvement of the state superior court in minors’ abortion decisions, we
discuss the alternative procedure described in the text in terms of judicial proceedings. We do
not suggest, however, that a State choosing to require parental consent could not delegate the
alternative procedure to a juvenile court or an administrative agency or officer. (Majority:
Bellotti v Baird, 1979)

In Example 1, the majority writer opens the second sentence with a clarifying device
which explicitly excludes a potential implication of the majority’s opinion. The commu-
nicative verb (suggest) provides the metadiscursive element that ties the device to the
current discourse.

Example 2

Thus, although a significant number of abortions within the scope of § 12S might be performed
during the later stages of pregnancy, we do not believe a different analysis of the statute is
required for them. (Majority: Bellotti V Baird, 1979).

Whilst Example 2 also involves a clarification of the majority’s position, there is no meta-
discursive element that ties the act of clarifying to the current discourse. The mental state
predicate (believe) is metacognitive (i.e. reflexive of cognition), not metadiscursive.
658 Discourse & Communication 16(6)

Across the sentence, the majority is indexed in its adjudicative instead of communicative
capacity. The example above was not counted as reflexive metadiscourse. Mental state
predicates may be better dealt with as evidentiality (see Van Dijk, 2014: 268).

Step 2: Classification of discursive target.  The second analytical step involved classifying
the clarifying devices according to their dialogic target.

Example 3

We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing
a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is
the appropriate judicial response? (Majority: Ayotte v Planned Parenthood, 2006)

In Example 3, the clarifying device (i.e. the noun question) was classified as interactively
targeted. In using the device, the writer clarifies the overall direction of the discourse.

Example 4

This is not to say, as JUSTICE THOMAS and JUSTICE KENNEDY claim, that a State is
prohibited from proscribing an abortion procedure whenever a particular physician deems the
procedure preferable. (Majority: Stenberg v Carhart, 2000)

In Example 4, the clarifying device (i.e. the communicative verb say) was classified as
dialogically targeted. The writer is responding to the discourse of the dissenters (Justice
Thomas and Justice Kennedy) and clarifying what is not being said by the majority, that
is, providing a rebuttal (Macagno, 2016: 320).

Example 5

Not only is it difficult to define, let alone determine, maturity, but also the fact that a minor may
be very much an adult in some respects does not mean that his or her need and opportunity for
growth under parental guidance and discipline have ended. (Majority: Bellotti v Baird, 1979)

In Example 5, the clarifying device was classified as monologically targeted. The focus of
the writer is on his ongoing discourse. He is not explicitly responding to another’s discourse
and (at least appears) to introduce the concept of maturity into the discourse himself.
My classification of discourse targets relied heavily on the co-text. In other words, it
was not only based on the metadiscursive device itself. This choice was informed by the
nature of legal discourse. For instance, Bhatia et al. (2004) note that legal discourse is
‘complex in terms of intertextuality and interdiscursivity’ (p. 224).
Take the following example.

Example 6

In weighing the balance between protection of a woman’s health and the comparatively small
additional cost of a pathologist’s examination, we cannot say that the Constitution requires that
McKeown 659

a State subordinate its interest in health to minimize to this extent the cost of abortions.
(Majority: Planned Parenthood v Ashcroft, 1983)

Analysis of the metadiscursive clarifying device alone could lead to a classification

as monologic. The writer indexes the majority in a communicative capacity, and the
performative utterance flows from the writer persona. Nevertheless, when we look at
the co-text, it is clear that the writer is using reflexive metadiscourse concerning
another discursive target (i.e. the U.S. Constitution). Table 1 contains the taxonomy
used here.

Table 1.  Taxonomy of targeted clarifying devices.

Target Description Example devices

Interactive Metadiscursive devices that
target target the overall interactive
situation/discourse
Dialogic Metadiscursive devices that
target target another’s discourse
Monologic Metadiscursive devices
target that target the current
communicator’s discourse
The narrow question before us. . .
This case is about. . .
. . .the basic question. . .
Nor can there be any question. . .
We cannot say. . .
We do not suggest. . .
We do not quarrel. . .Nor do we deny. . .
What the majority really means. . .
We do not suggest. . .Nor do we imply
This is not to say. . .
This does not mean. . .
We emphasize. . .

Step 3: Tabulation and statistical testing.  In terms of counting the clarifying devices, I
used the sentence as an analytic convenience. If two metadiscursive elements with a
clarifying function occurred in the same sentence, I only counted one instance of clari-
fying. After the results were tabulated, I conducted a log-likelihood test6 to determine
if frequency differences between the opinions were significant. Ultimately, this gener-
ated insight as to statistically significant differences in the overuse and underuse of the
clarifying devices between the majority opinions and the three kinds of separate opin-
ions explored here.

Results and analysis

In this section, I will report on the quantitative findings from my analysis. Again, reflect-
ing the nature of SCOTUS opinion writing, that is, separate opinions are motivated by a
decision to not silently join the majority, I will contrast the frequency results for the
majority corpus versus the three separate opinion corpora. The significant results will be
explored more qualitatively in the following section. Table 2 contains the raw frequency
distribution of the markers across the different types of opinion; Table 3 contains the
results of the significance tests.
660 Discourse & Communication 16(6)

Table 2.  Overall frequency results of clarifying devices by opinion.

Clarifying targets Majority Regular concurring Special concurring Dissenting

opinions opinions opinions opinions
Interactively targeted clarifier 17 6 16 31
Dialogically targeted clarifier 27 11 34 46
Monologically targeted clarifier 11 4 9 9
Total 55 21 59 86
Total words 76,807 11,981 50,766 78,141

Table 3.  Log-likelihood score comparing frequency results for the majority corpus versus the
separate opinion corpora.

Clarifying targets Majority and regular Majority and special Majority and
concurrences concurrences dissents

LL score Significance LL score Significance LL score Significance

Interactively 2.56 – 1.02 – 3.91 **
targeted clarifier
Dialogically 6.16 ** 6.30 ** 4.68 **
targeted clarifier
Monologically 1.82 – 1.88 – 0.24 –
targeted clarifier
Total 10.47 *** 6.65 *** 6.35 **

**Shows that the factor is significant at 95% confidence with a critical value of 3.83 (McEnery et al., 2006).
***Shows that the factor is significant at 99% confidence with a critical value of 6.63+.

As can be seen in Table 3, the majority opinion corpus did not contain significantly
more clarifying devices than any of the separate opinion corpora. This was surprising. In
an area of law that has been so divisive within the court, I had expected majority writers
to attempt to exert more control over the special concurring and dissent opinions through
clarifying devices, for example, by highlighting the implications in such opinions. This
may represent somewhat of a missed opportunity to close down alternative positions
proposed in separate opinions. Although no significant differences were found, it is note-
worthy that in terms of raw frequency the majority opinion corpus contained a greater
proportion of monologically targeted clarifying devices (i.e. 22%) when compared to the
separate opinion corpora. This could suggest that greater effort was put into expressing
nuance in relation to specific points in the majority’s discourse. In six instances of mono-
logically targeted clarifying, majority opinion writers used the devices to clarify general
principles of law (e.g. This is not to say Congress may. . .); in three instances majority
opinion writers clarified philosophical points (as in Example 5); in two instances, major-
ity opinion writers clarified hypotheticals (e.g. hypothetical X does not mean Y). Due to
the occlusive nature of the court’s working practices, whether these clarifications were
the product of judicial bargaining may remain unknowable.
McKeown 661

When compared to majority opinions, regular concurring opinions contained an over-

all significantly greater amount (99% confidence level) of clarifying devices. This was
largely driven by a significantly greater use (95% confidence level) of dialogically tar-
geted clarifying devices as well as a (non-significantly) greater use of interactively tar-
geted clarifiers. Again, as a genre, regular concurrences agree with both the outcome and
the rationale of the majority opinion. As will be discussed below, in accordance with the
nature of the genre, regular concurrence writers predominantly used dialogically tar-
geted clarifying devices to support majority opinions. As in the other three corpora, dia-
logically targeted clarifying devices were the most frequently used clarifiers. This is a
reasonable finding when we consider the nature of judicial discourse. Garzone (2016)
characterizes judicial discourse as inherently dialogic, that is, judges predominantly
respond to the stimuli presented to them. In other words, it is not surprising that judicial
opinion writers often clarified their own position in relation to the discourse of another.
Again, as with the results for the other sub-corpora, no significance was attached to the
use of monologically targeted clarifiers. Nevertheless, we should note that all four
instances involved clarifying general legal principles; two of these were articulated in
similar terms to the clarifying device in Example 11, that is, justifying the reason for
writing separately. Although they did not explicitly mention the majority opinion, such
instances suggest an orientation toward damage limitation (i.e. not undermining the
majority opinion).
When compared to the majority opinions, special concurring opinions contained
an overall significantly greater amount (99% confidence level) of clarifying devices.
This was driven by a significantly greater use of dialogically targeted clarifying
devices (95% confidence level). Special concurrence writers used dialogically tar-
geted clarifying devices to attack the majority rationale. Special concurrence writers
used monologically targeted clarifiers to clarify general points of law (n = 5); clarify
philosophical points (n = 2); and clarify hypotheticals (n = 2). Corley (2010) argues for
greater sensitivity in analyzing concurring opinions and rejects the lumping together
of regular and special concurrences. Although I only examined the use of one meta-
discursive marker, my findings would support her argument. In their use of clarifying
devices, special concurrences appeared more similar to dissents than regular
concurrences.
As with the previous two sets of results, when compared to the majority opinions, dissent
opinions contained an overall significantly greater amount (95% confidence level) of clari-
fying devices. This was driven by a significantly greater use of interactively targeted clarify-
ing devices (95% confidence level) and dialogically targeted clarifying devices (95%
confidence level). The use of clarifying devices by dissent writers reflected the nature of the
genre. Again, as a genre, dissents agree with neither the outcome nor the rationale of the
majority opinion. As will be discussed below, dissent writers used interactively targeted
clarifying devices to offer up alternative directions for the discourse, and dialogically tar-
geted clarifying devices to attack the specific points in the majority opinion. Dissent writers
used monologically targeted clarifying devices to clarify general points of law (n = 4); clar-
ify philosophical points (n = 3); and clarify a hypothetical (n = 1). There was also an instance
of monologic clarifying in which the dissent writer clarified the rhetorical nature of a spe-
cific set of arguments (i.e. I do not claim the arguments. . .are new ones).
662 Discourse & Communication 16(6)

The significant results will now be examined in greater detail. Again, as will become
apparent, decades of litigation has seen numerous clarifications to the original judgments
and subsequent case law.

Interactively targeted clarifying

As stated above, dissent opinions contained significantly more interactively targeted
clarifying devices than the majority opinions against which they were compared as
already stated, in accordance with the nature of the genre, dissent writers used interac-
tively targeted clarifying devices to challenge the grounds on which the case should be
decided.

Example 7

The only question properly before the Court is whether or not a preliminary injunction should
have been issued to restrain enforcement of the challenged provisions pending trial on the
merits. (Dissent: Thornburgh, 1986)

The example above occurred in a judgment in which the majority opinion struck down
six provisions of a state law as unconstitutional. The dissent writer’s act of interactively
targeted clarifying challenges the majority opinion. She does this by clarifying a more
narrow line of enquiry (i.e. the question of temporary injunction). The alternative direc-
tion of the discourse is asserted in exclusive terms (the adjective only rules out other lines
of enquiry); the writer also asserts her preferred direction in terms of correctness (the
adverb properly implies any other questions are improper). I would argue that this
amounts to an accusation of judicial overreach, which can act as a powerful signal to
parties (like lower courts and lawyers) that support for the majority opinion is weak.

Example 8

This case is not about abortion. It most assuredly is not about ‘the disfavoring of abortions’ by
state legislatures. Ante, at 273 (discussing Maher v. Roe, 432 U. S. 464 (1977); Harris v.
McRae, 448 U. S. 297 (1980)). Rather this case is about whether a private conspiracy to deprive
members of a protected class of legally protected interests give rise to a federal cause of action.
(Dissent: Bray V Alexandria Women’s Health Clinic, 1993)

The example above occurred in a judgment in which the majority opinion denied that
blockades around abortion clinics constituted discrimination against women and a denial
of their federally protected rights. It should be noted that the preposition about provides
the reflexive element, which locates the utterances in a metadiscursive context. In her
interactively targeted acts of clarifying the dissent writer first negatively defines the cur-
rent case (i.e. it is not about abortion or the disfavoring of abortion). She then asserts the
alternative, and arguably wider, grounds on which the case should proceed (i.e. as a
potential conspiracy against a protected class). As to why the opinion writer would want
to move the current case away from the court’s abortion jurisprudence, we should note
the date of the judgment (i.e. 1993). Relentless abortion litigation culminated in the 1992
McKeown 663

decision of Planned Parenthood v Casey. Casey replaced Roe’s strict constitutional pro-
tection with an, easier to satisfy, undue burden test, and gave states greater regulatory
power. That is, the court significantly weakened the legal standard applied to abortion
regulations.
In the following example, the dissent writer uses an interactively targeted clarifying
device to highlight an omission by the lower courts and SCOTUS.

Example 9

We have a strong reason to decide the question of thirdparty standing because it implicates the
integrity of future proceedings that should occur in this case. This case should be remanded for
a new trial, and we should not allow that to occur without a proper plaintiff. (Dissent, June
Medical Services, 2020)

The example above occurred in a case in which the lower courts and the majority opinion
failed to address the issue of standing7 even though the court had agreed to do so (an
issue also brought up in Example 12). The dissent writer uses a rational imperative (We
have a strong reason) to frame his act of clarifying. We may ask what is clarified here?
Again, I would argue that the writer clarifies his preferred direction for the discourse. A
case that currently that sits on the court’s docket8 involves in part the issue of standing.
In the leaked opinion of that case, the supposed confusion caused by abortion law to the
court’s jurisprudence on standing is cited as a reason for overruling this area of law.

Dialogically targeted clarifying

As stated above, regular concurring opinion writers used significantly more dialogically
targeted clarifying devices than majority opinion writers. In the following two examples,
it is possible to see how the regular concurrence writer uses dialogically targeted clarify-
ing devices to support the majority position.

Example 10

Like the Court, I do not read any decision of this court as requiring a State to finance a
nontherapeutic abortion. The Court’s holding in Roe v Wade, 410 U.S. 113 (1973), and Doe v
Bolton, 410 U.S. 179 (1973), simply require that a state not create an absolute barrier to a
woman’s decision to have an abortion. (Regular concurrence: Maher v Roe, 1977)

In the sentence-initial adverbial comment (Like the Court), the regular concurrence
writer signals agreement with the majority’s rationale. The writer then uses a dialogically
targeted clarifying device to emphasize a conservative reading of earlier abortion cases.
In clarifying the meaning of prior SCOTUS case law, the concurrence writer essentially
undergirds the majority’s rationale. Corley (2010: 72) shows that majority opinions with
supportive concurrences are more positively interpreted by lower courts and future ema-
nations of SCOTUS. In clarifying that previous precedents did not confer financial assis-
tance, it could be argued that the concurrence writer helped lay the ground for later
664 Discourse & Communication 16(6)

decisions in which a conservative SCOTUS majority upheld a denial of state funding for
medically necessary abortions (see Ziegler, 2020: 49–51).
Even though Corley presents evidence to the contrary, regular concurrences can be
seen as ‘theoretically puzzling’ (Corley, 2010: 72) since the writer agrees with the major-
ity but in writing separately creates the risk of weakening the court’s authority (see
Ginsburg, 1990: 139; Scalia, 1994: 40–41). In the following example, we may under-
stand the act of clarification as discursively laboring to limit any potential damage to the
majority opinion.

Example 11

I join the Court’s opinion and write separately only to clarify two matters in the record. (Regular
concurrence: Madsen 1994)

In the opening sentence, the writer uses reflexive metadiscourse to signal agreement with
the majority (I Join the Court’s opinion.  .  .) and previews (two matters) what is to follow in
the discourse. He also explicitly announces his intention to clarify two matters in the fac-
tual record.9 The ‘two matters in the record’ are clarified later in the discourse, so we may
ask what does the act of clarifying actually clarify? I would argue that the act of clarifying
does at least two things. First, it clarifies the writer’s reason for producing a separate opin-
ion (i.e. responding to another’s discourse). Second, the writer also clarifies the content of
his act of clarifying (i.e. matters in the factual record not the majority opinion).
As already mentioned, writers of special concurrences and dissents also used signifi-
cantly more dialogically targeted clarifying devices than majority writers. In both data
sets, as part of an attack on the majority’s rationale, clarifying devices were used to
highlight omissions in the majority opinion.

Example 12

For that reason, we granted a second question for review in this case (though one would not
know that from the Court’s opinion, which fails to mention it): whether Hill should be cut back
or cast aside. (Special concurrence: McCullen v Coakley, 2014)

The example above occurred in a case where the majority struck down a state law that
prohibited protest activities within a 35-foot zone of any abortion clinic. Although the
writer, in the example above, concurred with the case’s outcome, he did not agree with
the rationale. In a parenthetical comment, the special concurrence writer uses a dialogi-
cally targeted clarifying device to highlight an omission in the majority’s opinion. The
omission is framed in terms of a promise broken. The writer details how the court agreed
to review the scope of a prior precedent (Hill) but failed to do so (similar to Example 9).

Example 13

Is the judge expected to know more about the woman’s medical needs or psychological makeup
than her doctor? Should he consider the woman’s financial and emotional status to determine
McKeown 665

the quality of life the woman and her future child would enjoy in this world? Neither the record
nor the Court answers such questions. (Special concurrence: Hodgson, 1991)

The example above occurred in a case in which the majority struck down provisions in a
state law that required minors seeking abortions to notify both parents and wait 48 hours but
upheld a judicial bypass procedure.10 In the example above, the writer uses a dialogically
targeted clarifying device to highlight the lack of guidance in the court’s opinion. Given that
SCOTUS decisions are supposed to provide direction for lower courts, the writer lodges a
potent criticism against the majority that holds the potential to instigate further litigation.
Although the focus of the dissent was pronouncedly on the majority opinion, there
were a handful of instances of dialogically targeted clarifying in which the dissent writer
referred to other opinions in the current judgment. In the following example, the dissent
writer refers to a regular concurrence of the same judgment.

Example 14

Third, the majority and JUSTICE O’CONNOR argue that this Court generally defers to lower
federal courts’ interpretations of state law. Ante, at 940 (majority opinion); ante, at 949
(O’Connor, J., concurring). However, a decision drafted by JUSTICE O’CONNOR, which she
inexplicably fails to discuss, Frisby v Schultz, 487 U.S. 474 (1988), makes clear why deference
is inappropriate here. (Dissent: Stenberg v Carhart, 2000)

In the first sentence, the dissent writer reports a position taken by the majority and the
regular concurring opinion (written by Justice O’Connor). The dissent writer then refers
to a previous decision written by justice O’Connor which takes a contrary position to her
position in the current case. The writer then embeds a clarifying device (fails to discuss)
which highlights an omission of Justice O’Connor to discuss her previous opinion in her
current opinion. This is a serious allegation, not only of personal inconsistency but of per
incuriam, that is, a decision where the court fails to consider relevant legal authorities
leading to a flawed decision and providing grounds for an overruling in future cases
(Bettinson, 2011: 450).

Conclusion
In this study, I investigated the use of metadiscursive clarifying devices in the written
opinions of SCOTUS abortion discourse. Based on earlier work by Mauranen (2001), a
tripartite distinction of clarifying devices was used. Regular concurrences, special con-
currences, and dissents were compared to a corpus of majority opinions. Significant
findings were identified with implications for the study of reflexive metadiscourse, legal
discourse, and legal practice, respectively.
In terms of overall use, regular concurrences, special concurrences, and dissents con-
tained significantly more clarifying devices than the majority opinions against which
they were compared. This may have represented a missed opportunity by the majority to
assert control over the positions expressed in the separate opinions. Dissents writers used
a significantly greater amount of interactively targeted clarifying devices. Given that
dissenting opinions disagree with both the outcome and rationale of the majority opinion,
666 Discourse & Communication 16(6)

and are often driven by ideological differences (Wahlbeck et al., 1999: 501), it is not
surprising that dissent writers should use clarifying devices to challenge the fundamental
grounds on which the discourse should proceed. The two types of concurrences con-
tained significantly more dialogically targeted clarifying devices than majority opinions.
More qualitatively focused analysis revealed that writers used these devices for different
underlying purposes. Regular concurrence writers used this type of clarifying device to
support the majority’s opinion (e.g. clarifying the meaning of previous case law in a way
that supports the majority’s rationale). Special concurrence writers used the devices in a
similar manner to dissent writers, that is, to attack the majority opinion’s rationale. Both
special concurrence writers and dissent writers used dialogically targeted clarifying
devices to highlight omissions in the majority opinion. The use of such devices signaled
areas that were open to further litigation and sometimes amounted to claims of preceden-
tial invalidity (as in Example 16). The differences observed between regular and special
concurrences warrants further analysis of the two types of opinion. Future research could
involve a contrastive analysis of a broader collection of reflexive metadiscourse markers
used by regular and special concurrence writers. This could involve the use of either a
generally balanced corpus of judicial opinions or a specialized legal domain corpus (e.g.
criminal proceedings cases). This would generate much-needed insight into how concur-
rence writers explicitly manage the discourse and guide their audience when expressing
different types of agreement.
My research suggests that the analysis of targeted clarifying devices can yield useful
insight for scholars and lawyers alike. For instance, interactively targeted clarifiers
being concerned with the meaning of the whole case often yield insight as to what domain
of law the current case should fall within (see Example 8). Dialogically targeted clari-
fiers being concerned with responding to the discourse of another can yield interesting
insights as to what grounds the majority opinion has controlled or has been undermined
by the separate opinions (see Examples 12–14). Monologically targeted clarifiers can
yield insight as to the amount of nuance that has been expressed in relation to a specific
point. In sum, following the clarifying devices of a given body of case has the potential
to yield insight as to aspects of legal issues that have been closed down, opened up, or
remain contested.
With 50 years’ of hindsight, the prescient nature of clarifying devices became appar-
ent. For instance, the dissent opinion featured in Example 7 reflected a growing reluc-
tance of the court to zealously strike down abortion regulations (see Ziegler, 2020: 84).
The interactively targeted clarifying device reflects the direction the court would take,
that is, temporarily granting laws from going into effect but being more discerning in its
treatment of state laws regulating abortion. Likewise, the court became less tolerant of
protest activities in subsequent cases after that case in Example 8. The clarifying devices
in Examples 9 and 12 both occurred in recent cases and point to an eagerness of con-
servatives on the court to address the issue of standing. Again, the recently leaked opin-
ion cited the issue of standing as a reason for overruling Roe and Casey. In closing, Baum
(2018) shows that SCOTUS is most likely to overturn previous decisions when there has
been a significant change in its ideological balance (385). Due to successive appoint-
ments of the Trump administration, this is currently the case. Indeed, a recently leaked
draft SCOTUS opinion indicates that the court is poised to overturn this area of law. We
McKeown 667

may soon learn whether the perpetual lines of dissent which have called for the overturn-
ing of this area of law will also prove themselves predictive of future outcomes.

Funding
The author received no financial support for the research, authorship, and/or publication of this
article.

Notes
  1. Since this paper was accepted, the Supreme Court of the United Sates of America, has over-
ruled this area of law. For posterity, I preserve the text as originally accepted.
  2. Hereafter referred to as reflexive metadiscourse to distinguish it from broad school models of
metadiscourse.
  3. A public meeting in which lawyers representing each party present arguments to the court (see
Tracy, 2011: 80).
  4. Ädel (2017) also makes a similar observation.
 5. http://www.corpustool.com/index.html.
 6. https://ucrel.lancs.ac.uk/llwizard.html.
  7. Under ordinary rules of legal standing only a party who has a direct stake in the outcome of
the case may bring a claim before the court (see Baum, 2018: 132). Sometimes, an organiza-
tion (acting as third party) can bring a case concerning constitutional rights, if it is difficult
for an individual to bring the case before the court and if the rights of the organization and the
individual are closely aligned.
  8. Dobbs V Jackson’s Women’s Health Org. Docket number: 19-1392.
  9. The official files containing a written account of the factual evidence and historical proceed-
ings of the case (Ward et al., 2015: 407).
10. A process that substitutes parental consent. In such proceedings a minor must appear before a court
and prove that they are sufficiently mature to have an elective abortion (see Ziegler, 2020: 90).

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Author biography
Jamie McKeown is a is a Research Assistant Professor in the Department of English and
Communication at the Hong Kong Polytechnic University. He has a degree in Law and a PhD in
Linguistics. His current research within legal discourse includes bodily autonomy, medical pri-
vacy, and constitutional rights.