## Polina Shvanyukova

## Writing History in a Supreme Court Ruling: Evaluative language in the majority opinion concerning Dobbs vs. Jackson

## Abstract

This paper conducts an exploratory investigation into the use of evaluative language in the historical section of the majority opinion in Dobbs v. Jackson Women's Health Organization, 597 U.S. (2022). The investigation employs Martin & White's (2005) Appraisal Theory, adapted specifically for the analysis of the particular evaluative features of historical discourse as elaborated on, for example, by Myskow (2018a) and Oteíza & Pinuer (2013). The findings confirm that a revised version of the Appraisal framework can be fruitfully applied to systematically account for the complex interplay between, on the one hand, the various sources of evaluation, and, on the other hand, the specific attitudinal resources, employed by the authorial voice in an attempt to construe and advance a particular view of the past. This particular ideological view is ultimately  leveraged  to  produce  a  convincing  justificatory  argument  for  the  overruling  of  the  two  previous  landmark Supreme Court decisions that had, respectively, granted and confirmed abortion as a constitutional right in the United States of America.

## Keywords

Appraisal Theory, legal discourse, U. S. Supreme Court, abortion, argumentative discourse

## 1 Introduction

This paper investigates the patterns of evaluative language use in the majority opinion released by the U. S. Supreme Court in Dobbs v. Jackson Women's Health Organization , 597 U.S. (2022). 1 The investigation focuses on a ten-page extract (pp. 15-25) containing a section in which the majority justices  deal  with  the  history  of  abortion  jurisprudence  in  the  English  common  law  and  in  the American legal traditions respectively, with a view to argue that abortion is not a constitutional right 'rooted in our Nation's history and tradition' (p. 9). This historical reconstruction is at the core of the  majority's  argument  justifying  the  overruling  of  the  two  previous  Supreme  Court  decisions, namely Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), as is explicitly acknowledged and emphasized by Justices Breyer, Sotomayor and Kagan in the dissenting opinion:

The lone rationale for what the majority does today is that the right to elect an abortion is not 'deeply rooted in history': Not until Roe , the majority argues, did people think abortion fell within the Constitution's guarantee of liberty. 2

The goal of the present study is to examine the rhetorical mechanisms at work in the representation, supported  by  explicitly  inscribed  and/or  implicitly  invoked  realizations  of  evaluation  (Martin  & White 2005), of historical facts and historical actors in the majority justices' reconstruction of the preRoe tradition of abortion jurisprudence. In what follows, I set out to show how this piece of legal writing, in its purportedly objective and neutral presentation of the relevant facts of the past, uses a range of evaluative resources typical of historical discourse (Coffin 2002, 2006; Bondi 2017; CarrióPastor 2019). The extract from the majority opinion is analyzed through the lens of Appraisal Theory (Martin & White 2005), drawing on the recent work by Myskow (2017, 2018a, 2018b), as well as Oteíza (2003, 2009) and Oteíza and Pinuer (2013), who have expanded and fine-tuned Appraisal framework  in  order  to  more  accurately  and  systematically  account  for  the  particular  evaluative patterns typically found in historical writing.

1  The text of the ruling can be retrieved from https://supreme.justia.com/cases/federal/us/597/19-1392/. The Court here ruled in favor of upholding Mississippi's Gestational Age Act that banned abortions performed after 15 weeks of gestation, overruling the previous decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. The full text of the majority opinion, excluding appendices, runs 79 pages long. In what follows, the page numbers in brackets accompanying the quotations from the ruling refer to the pdf version that can be downloaded from the same website. 2 Dobbs v. Jackson Women's Health Organization , 597 U.S. (2022), dissenting opinion.

*  Polina Shvanyukova Dept. of Languages and Literatures, Communication, Education and Society, University of Udine polina.shvanyukova@uniud.it

In  the  analysis  of  the  excerpt  from  the Dobbs  v.  Jackson ruling,  the  present  study  adopts  a systemic-functional  approach  to  legal  discourse.  Seen  from  this  perspective,  legal  discourse represents an example of a specific type of language use 'embedded in the context of situation and beyond this in the context of culture' (Miller 2002: 120). Following Miller, I treat the text of the majority opinion 'as an instance of a 'specialized site of engagement'' characterized by 'speaker selections from the semantic resources which the culture makes available for use in struggles for meaning ascendancy' (2002: 120). In this struggle for meaning, the relations of power and solidarity can be realized in the lexicogrammar and the phonology, with attitudinal meanings 'either explicitly expressed in the text ['inscribed'] or conveyed through ideational expressions ['invoked']) (SimonVandenbergen  2014:  125).  As  such,  the  focus  of  the  investigation  is  on  the  different  types  of evaluative acts employed in the majority opinion to construct a persuasive justificatory argument.

Section 2 of the paper begins by briefly introducing the rich field of linguistic approaches to the study of evaluative phenomena, paying special attention to Martin and White's Appraisal Theory. I then  review  some  examples  of  research  in  legal  discourse  that  have  employed  the  Appraisal framework  to  analyze  the  use  of  evaluative  meanings  in  legal  texts.  The  section  concludes  by detailing the adaptations to the Engagement subsystem of the Appraisal framework that have been introduced to investigate the patterning of evaluative language in historical discourse (see above). Section 3 first offers a brief overview of the history of the U. S. Supreme Court involvement in matters concerning reproductive rights up until 1973, followed by the presentation of the analytical procedure carried out on the dataset with the view to explore the use of multiple sources of evaluation in the excerpt under investigation. In Section 4 I propose to integrate the methodology presented and applied  in  Section  3  with  the  notion  of  'the  valorative  symbolic  representation'  of  the  time framework as discussed by Oteíza and Pinuer (2013). Finally, Section 5 offers some concluding remarks.

## 2. Literature review

## 2.1 Discourse-analytical approaches to the study of evaluation in discourse

In recent decades interest in the analysis of evaluative language has opened new avenues of research into linguistic phenomena that have been variously defined as stance (investigated mainly by Biber, Finegan  and  Conrad,  e.g.  Biber  &  Finegan  1988,  1989;  Conrad  &  Biber  2000,  as  well  as Somasundaran & Wiebe 2010 and Hyland 2005), evidentiality (Chafe & Nichols 1986), as well as subjectivity (White 2004) (cf. Benamara et al. 2017). These examples represent but some from a range  of  linguistic  approaches  to  the  study  of  evaluative  linguistic  phenomena  that  have  been surveyed by Benamara et al. (2017: 203-209) in a helpful overview that includes both qualitative and corpus-based studies of evaluative language (cf. also Sarangi 2003; Martin & White 2005: 38-40; Flowerdew 2012: 179-180; Partington et al. 2013: 64-65; van Leeuwen & Han 2023). Among the most important approaches that represent the different traditions of research into evaluative language we find, on the one hand, Martin & White's (2005) Appraisal theory, and, on the other, the research area  of  evaluation  and  pattern  grammar  established  by  Hunston  (2011),  as  well  as  Hunston  and Thompson (2000a; 2000b). Major contributions to the area of corpus-based studies of evaluation the three domains of Engagement, Allitude and Uraduation.

Monogloss (Authors do not recognize alternative

voices)

Heterogloss (Authors recognize alternative positions)

include also work by Bednarek (2006) and Zappavigna (2018: 59-72), while Partington et al. (2013) investigate  evaluation  by  combining  qualitative  methodologies  (e.g.,  manual  inspection/close reading) with quantitative corpus analyses, typically used in corpus-assisted discourse studies. The development of specialized computer-based tools (e.g., the UAM Corpus Tool created by O'Donnell [2008] or the AppAnn system designed by Almutairi [2013]), offers new possibilities for a more systematic study of evaluative patterns in language use (Oteíza 2017).

In the present study evaluative language patterns will be analyzed through the lens of Appraisal Theory (Martin & White 2005). As Oteiza (2009: 613) explains,

Appraisal theory is a reorientation of Halliday's legacy (1994) and his work on mood and modality developed as part of the theoretical frame of the SFL. The main purpose of Appraisal theory has been to present a comprehensive and systematic reorganization of the linguistic resources that can be used to value the social experience.

As is well known, the system of Appraisal according to Martin and White (2005) is represented by the three domains of Engagement, Attitude and Graduation:

Fig. 1: Overview of the Appraisal system (from Oteíza 2009: 615)

The  different  sub-systems  of  Appraisal  can  be  briefly  described  as  follows.  The  system  of Engagement focuses on the dialogical positioning of the speakers or writers with respect to their audience or to propositions within the discourse (Martin & White 2005). The system of Attitude examines  explicitly  inscribed  and/or  implicitly  invoked  codings  of  personal  feelings  about  self (Affect), others (Judgment), and objects (Appreciation), respectively (cf. Gales & Solan 2017: 116117).  The  system  of  Graduation  enables  speakers  or  writers  to  either  intensify  or  downplay  the strength of their utterances (Martin & White 2005). More specifically,

[w]ithin the system of Attitude, speakers utilize graduation to demonstrate greater or lesser degrees of positive or negative feelings; within the system of Engagement, speakers utilize graduation to intensify or diminish their level of involvement or investment in the discourse. (Gales & Solan 2017: 117)

To  sum  up,  Appraisal  Theory  enables  the  researcher  to  investigate  'the  inscribed  and  evoked codification of intersubjectivity in the discourse, taking into consideration both the epistemological and interpersonal expressions' (Oteíza 2017: 458). Section 2.2 will review examples of some recent research that has fruitfully applied the framework in the analysis of legal texts.

ENGAGEMENT

## 2.2 Appraisal Theory and legal discourse

Thanks to the growing interest in investigating the ways in which evaluation can manifest itself in legal discourse, labels such as evaluation and stance (see 2.1 above) have been used to explore the process  of  stancetaking  from  a  discourse-pragmatic  perspective  (cf.  Chaemsaithong  2017). Chaemsaithong (2017:  106-107)  includes  terms  such  as  voice  (Ivanic  and  Camps  2001;  Hyland 2008), point of view (Simpson 1993), as well as appraisal (Martin & White 2005), in the list of the partially overlapping/competing  theoretical  and  methodological  frameworks  that  have  been employed to explore 'legal discourse as evaluative and interpersonal rather than merely objective and impersonal'.

Following Bhatia (1987), Bayley explains that

[t]he superordinate term 'language of the law' can in fact be broken down into 'professional discourse' (lawyer-client consultation, courtroom discourse), 'juridical discourse' (judgments and rulings), and 'legislative discourse' (contracts, agreements etc., legislation and rules, etc.) (1993: 63)

In recent years Appraisal Theory has been fruitfully applied as a method of analysis for the study of evaluative  patterns  in  a  range  of  legal  texts,  with  most  research  being  focused  on  identifying, cataloging, and quantifying the specific attitudinal resources used by a wide range of actors in a number of sub-categories of legal discourse (cf. Miller 1993).

In the studies of courtroom discourse, for example, Gales & Solan (2017) have analyzed the use of  stance  markers  during  cross-examination  comparing  cases  involving  sexual  and  non-sexual assault. More specifically, they were interested in investigating 'how moral judgements - those that were supposedly barred through rape shield laws - are still expressed in [sexual assault cases]' (Gales & Solan 2017: 108). Their findings showed that the attitudinal resources from the category of Social Sanction (Judgment) in the sub-system of Attitude were frequently employed by cross-examining lawyers to provide socially negative assessments of witnesses. Gales & Solan (2017: 108) conclude by  reasserting  'the  usefulness  of  Appraisal  Analysis  as  a  tool  for  achieving  a  more  nuanced understanding of the use of stance markers during cross-examination', stressing that, as their analysis has shown, in sexual assault cases specifically, 'the [negative] stance toward the witness [creates] different and more powerful reactions' (2017: 137).

In a similar vein, Bartley has used the analytical framework of Appraisal Theory to examine 'the evaluative nature of the lawyers' discourse concerning specific individuals' (2020: 422). Her casestudy dealt with the portrayals of the defendant and the victims by the lawyers in a rape case that resulted in a wrongful conviction. Using the UAM Corpus Tool (see 2.1 above), Bartley conducted a corpus-based investigation whose aim was to determine 'particular language patterns employed by attorneys  of  the  case  in  their  closing  arguments',  paying  special  attention  to  'the  lexical  and grammatical choices [that were] selected in favor of others' (2020: 427). Focusing on Affect and Judgment,  Bartley  was  able  to  identify  a  difference  between  the  use  of  positive  and  negative appraisals by the prosecution and the defense team respectively. Another interesting finding in this study  concerned  the  use  of  invoked  vs.  inscribed  appraisal,  with  some  instances  of  explicitly evaluative comments found in the dataset of 'courtroom discourse [that] is supposed to be free of evaluative lexis' (Bartley 2020: 440).

When it comes to juridical discourse, the evaluative language of the U. S. Supreme Court opinions has been investigated in several recent studies. Chaemsaithong (2017) refers to the work of Finegan (2010)  and  Mazzi  (2010),  who  have  examined  the  use  of  attitudinal  and  emphatic  expressions (Finegan 2010), as well as judicial evaluation strategies in Supreme Court judgments (Mazzi 2010). The consensus in legal discourse studies is that the distinct functions of language in the U.S. Supreme Court decisions are associated with the pivotal role of attitudinal, that is to say, evaluative meanings that 1) are extremely context-dependent and 2) occur 'within the constraints of values valid for [this particular] legal system and legal culture' (Goźdź Roszkowski & Pontrandolfo 2013: 13). In other words, as Goźdź Roszkowski argues, judicial  argumentation  is  an  institutionalized  form  of  discourse  communication  where evaluation  is  the  core  information  communicated.  […]  In  the  context  of  Supreme  Court opinions, judges need to refer to arguments advanced by lower court judges and other legal actors taking into account a multiple audience. […] the acceptability of the decision, to a large extent, depends on the quality of the justification. The skillful use of evaluative language, which contributes to the justificatory force of argumentation, should be regarded as one of the hallmarks of professional judicial writing. (Goźdź Roszkowski 2022: 4)

As already hinted at above (see Section 1), in the particular extract under investigation from the U. S. Supreme Court opinion, the majority justices craft their justificatory argumentation by referring to historical facts and historical actors. This is done in order to write an apparently impartial and, at the same time, convincing historical account of the preRoe abortion jurisprudence that provides the foundation upon which rests the decision to overrule the two previous landmark Supreme Court rulings. The final paragraph in this Section details the expanded analytical framework that will be applied to carry out the analysis on the dataset that will be presented in Section 3.

## 2.3 Evaluative meanings in historical discourse: Myskow's Levels of Evaluation framework

In research that has employed an SFL-based framework to analyze evaluative meanings in historical discourse the subsystem that has received special attention is that of Engagement, that is to say, 'the system that helps us explore the source of evaluations' (Oteíza 2009: 614; cf. Martin & White 2005: 92-135).  As  outlined  already  in  White  (2000,  2003),  the  first  distinction  in  the  Engagement subsystem concerns that between monoglossic and heteroglossic utterances (see Fig. 1 above). The former, as White makes clear, are evaluations

introduced  into  the  text  via  bare  assertion.  Accordingly  these  propositions  are  declared absolutely. There is no acknowledging of alternative positions with respect to these particular evaluations, no recognition that such propositions operate within a continuing debate. Rather, the text represents each of these negative evaluations as located in the textual voice's single, autonomous and isolated subjecthood, and as not in tension with, or contradistinction to, any alternative position or positions. Thus from the Bakhtinian perspective, such bare assertion is 'monoglossic' or 'undialogized' (Bakhtin 1935[1981]: 427). (White 2003: 263)

When,  instead,  writers  or  speakers  use  a  range  of  linguistic  resources  to  introduce  alternative positions with respect to particular evaluations, the phenomenon of heteroglossic engagement is at work (White 2003: 267-270). Heteroglossic engagement, as White explains, can vary in the degree of construing engagement by positioning the textual voice, for example, as either 'being open to, or entertaining, dialogic alternatives' or as aiming 'to reject, counter, confront, head off or rule out actual  or  potential  dialogic  alternatives'  (2003:  268).  The  two  communicative effects  have  been labelled as 'dialogic expansion' and 'dialogic contraction' respectively (White 2003: 268).

In order to account for the ways in which, in historical discourse, the various evaluative voices are introduced and 'work together to advance particular value positions' (Myskow 2018a: 336), Myskow  has  devised  a  four-level  framework  of  evaluation  that  builds  on  and  fine-tunes  the Engagement subsystem in Martin & White's Appraisal framework, as well as Hunston's (2000) Status, Value and Relevance (SVR) theory. 3  By adapting Martin & White's framework, Myskow's goal is to account 'for the complex interplay of evaluative voices in historical discourse, [designing]

3 For reasons of space, Hunston's SVR theory cannot be discussed in detail in this paper (see Hunston [2000] for details). Another source that Myskow is indebted to is Macken-Horarik's (2003) work on inter- and super-subjectivity.

four levels of evaluation tuned specifically to the disciplinary activities of historians' (2018a: 336). As shown in Table 1, Myskow's levels of evaluation are labelled as ' inter , super , extra , and meta -evaluation',  with  each  level  being  'differentiated  vis-à-vis  different  combinations  of target and source of evaluative acts' (Myskow 2018a: 337):

Table 1: Myskow's Levels of Evaluation Framework (based on Myskow [2018a: 339-340; 345-347]).

| Level             | Description                                                                                                                                                                                  | Examples of realization                                                                                                                                                                                                                                                         |
|-------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| Inter -evaluation | This level is concerned with evaluations of the past by historical participants                                                                                                              | 1) direct quotations (e.g., excerpts from some documents) reported by the authorial voice; 2) indirect textual assimilations (e.g., 'it was assumed'); 3) realized more indirectly by incorporating reports of historical actors' feelings vis-à-vis nominalizations of emotion |
| Super -evaluation | Here the evaluations of the past are performed by the authorial voice that offers the official, sanctioned views of the text - those that readers are most strongly positioned to align with | typically monoglossic, i.e., categorical claims by the authorial voice realized as unmediated, categorical assertions                                                                                                                                                           |
| Extra -evaluation | Here the authorial voice engages with other views toward the past, and in doing so takes up a more scholarly or disciplinary posture                                                         | 1) realized by reporting the views of others through overt attributions (e.g., 'some historians have argued'); 2) realized through other types of dialogical positioning that implicitly construe alternative views toward the subject-matter                                   |
| Meta -evaluation  | This level is concerned with evaluations of the present discourse under construction                                                                                                         | This level is distinct from the others in that, by focusing on evaluative features of the discourse itself, it permeates all parts of a text, and thus can be seen as subsuming the other three levels of evaluation                                                            |

Myskow's  approach  to  the  analysis  of  evaluative  meaning  in  historical  discourse  pays  special attention to the ways in which the different levels in the framework interact with each other. Labelled with  the  term  'evaluative  resonance',  this  mechanism  'accounts  more  specifically  for  how  an attitudinal realization by a participant at one level of the framework may resonate at other levels, invoking evaluations by other discourse participants' (Myskow 2018a: 340). To give an example of evaluative resonance at work, 'an evaluation performed by a historical actor ( inter -evaluation) or an interpreter of the past ( extra -evaluation) may be interpreted as consistent with or sanctioned by the authorial voice ( super -evaluation)' (Myskow 2018a: 340).

The procedure, adopted and tested in Myskow (2017, 2018a, 2018b), as well as in Myskow & Ono (2018), involves employing the framework

[to code] particular evaluative acts in terms of their types and locating them at different levels of the proposed framework. The Attitude system provides a comprehensive set of resources for coding evaluations of things (Appreciation), people (Judgment) and their feelings (Affect) across each of the levels. The Engagement system is helpful for locating them at the inter-, super-, or extra -evaluative levels. (Myskow 2018a: 347)

In Section 3 I will briefly review the preRoe involvement of the U. S. Supreme Court in the matters involving reproductive rights. I will then detail the analytical procedure carried out on the excerpt from Dobbs v. Jackson in  order  to  explore  1)  the  different  sources  of  evaluation  (e.g.,  historical actors, the authorial voice, other legal actors, etc.) who perform evaluations of the historical facts that  have been selected by the majority justices in their reconstruction of the history of abortion jurisprudence, as well as 2) the particular attitudinal resources that the majority opinion relies on to construct its justificatory argument.

## 3. Applying Myskow's Levels of Evaluation framework: Presentation of findings

## 3.1 The U. S. Supreme Court and reproductive rights before Roe v. Wade

To briefly contextualize the historical background to the case under investigation, it is necessary to recall that the involvement of the U.S. Supreme Court in matters concerning reproductive rights can be traced as far back as the 1920s. In the infamous decision in Buck v. Bell, 274 U.S. 200 (1927), the Court ruled that there was no constitutional objection to the procedure of compelled sterilization of individuals  with  'hereditary'  mental  conditions.  The  ruling  was  overturned  fifteen  years  later  in Skinner  v.  Oklahoma  ex  rel.  Williamson, 316  U.S.  535  (1942)  when,  against  the  backdrop  of  a changed socio-political context, the Court ruled that compulsory sterilization violated the plaintiff's reproductive rights. It was in Skinner v. Oklahoma that the Court explicitly acknowledged, for the first  time,  that  'laws  that  infringe  the  implied  fundamental  right  to  procreate  are  especially problematic under the Constitution' (quoted in Stone [2017: 359]). Fast forwarding to the 1960s, in the groundbreaking decision in Griswold v. Connecticut, 381 U.S. 479 (1965), Justice William O. D ouglas designated 'a right of privacy older than the Bill of Rights' (quoted in Stone [2017: 361]) as a constitutional right married couples could rely on when choosing whether to use contraception. In other words, the Court ruled that the State could no longer interfere with these decisions by making contraception illegal. The discrimination between privacy rights accorded to married as opposed to unmarried couples stood until 1972, when Eisenstadt v. Baird, 405 U.S. 438 (1972) was decided . As summarized by Stone (2017: 366), '[ Eisenstadt] 'proclaim[ed] the existence of a new fundamental right, hinted at in both Skinner and Griswold […]: Skinner had dealt with the right to bear or beget a child; Griswold and Eisenstadt dealt with the right not to bear or beget a child.'

When, in 1973, the landmark ruling in Roe v.  Wade was  handed  down,  a  new  era  started  in constitutional  jurisprudence  on  abortion-related matters.  Before Dobbs v. Jackson was  argued  in 2021 and decided in 2022, sixteen major rulings involving reproductive rights were issued by the U. S. Supreme Court in the period between 1973 and 2016 (see Ziegler 2020 for the details of these decisions). Typically, rulings on reproductive rights showcased an ideologically polarized Court, so much so that, at least until Dobbs v. Jackson , Roe v. Wade had held the dubious honour of being one of the two most egregious examples of the 'shamelessly partisan' (Segal & Spaeth 2002: 2) rulings in the Court's history.

## 3.2 Analytical procedure

The approach adopted in the present study is exploratory and qualitative. In order to test the suitability of the framework devised by Myskow (see 2.3 above) in the analysis of a legal opinion dealing with the reconstruction of historical facts, the investigation focuses on a short extract from the majority opinion (approx. 2,500 tokens). Following the analytical procedure detailed by Myskow (2018a: 347352), the excerpt was coded manually for attitudinal (Affect, Judgment and Appreciation categories of the Attitude domain) and engagement (Levels of Evaluation framework) resources. While the coding was performed on the sentence level, the accumulation of (negative) evaluation and evaluative resonance in the interplay of the different levels of evaluation was considered across sentences.

Tables  2  and  3  show  how  the  coding  procedure  was  carried  out  using  two  sample  sentences (Sentence 10 [S10] and Sentence 13 [S13]). 4 The items highlighted in bold represent instances of inscribed appreciation, while the token 't' signals invoked attitude and is introduced to indicate items whose function is to extend the prosodies inscribed by the explicitly evaluative items (cf. Martin & White 2005: 61-90). 5

4 The tables with the individual coded parts have been arranged vertically rather than horizontally, as suggested in Myskow (2018a).

5  The fundamental distinction between inscribed and invoked attitude is summarized by Martin and White as follows: '[the] non-core vocabulary items infused with manner connote attitude rather than denote; as such they lie somewhere

Table 2: Coding of a sample sentence (S10)

| (S10) Roe either (1a) ignored or misstated this history, and Casey (1b) declined to reconsider Roe's (1c) faulty historical analysis.   | (S10) Roe either (1a) ignored or misstated this history, and Casey (1b) declined to reconsider Roe's (1c) faulty historical analysis.   |
|-----------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                         | Levels of Evaluation framework                                                                                                          |
|                                                                                                                                         | Super-evaluative level                                                                                                                  |
| Target                                                                                                                                  | Roe, Casey, Roe 's historical analysis                                                                                                  |
| Evaluation                                                                                                                              | (1a), (1b), (1c) -app                                                                                                                   |
| Target                                                                                                                                  | this history [the history of 'no support in American law for a constitutional right to obtain an abortion', see (S1-S9)]                |
| Evaluation                                                                                                                              | t, +app                                                                                                                                 |

Sentence 10 (S10), coded in Table 2, sums up and concludes the introductory part of the excerpt under investigation. Sentences (1-9) introduce the main points that will be developed in the historical section of the opinion. Taken together, this initial 10-sentence sequence introduces the claim about the absence of any historical evidence whatsoever (as evinced from court rulings, scholarly treatises, etc.) for any support, in the history of either English common law or American jurisprudence, for a constitutional right to obtain an abortion.

The main evaluative act in (S10) is performed on the super-evaluative level by the authorial voice that offers a categorical assessment of the historical facts, imposing this reconstruction of the events on the multiple audiences the opinion aims to address. There is no engagement with either historical actors  (on  the  inter-evaluative  level)  or  other  interlocutors  that  could  offer  alternative  (either supporting or diverging) viewpoints on the extra-evaluative level. The main targets of evaluation are Roe , Casey , Roe's historical analysis (see row 'Target' in Table 2) and these are evaluated explicitly in a negative way (Composition: balance) in the stretches of text marked in bold as (1a), (1b), (1c) in row 'Evaluation' in Table 2. From the inscribed negative evaluation of the way in which Roe and Casey had dealt with the history of abortion jurisprudence, it is possible to make an inference and identify  an  invoked  positive  evaluation  of  the  history  in  question  as  logical,  rich  in  detail (Composition: complexity, see the last two rows in Table 2) and important to recover. This reading is  immediately  confirmed  in  (S11)  ('It  is  therefore  important  to  set  the  record  straight.').  The accumulation  of  negative  evaluation  gradually  intensifies  in  the  following  paragraphs  that  piece together the shortcomings of Roe 's and Casey 's (very similar) versions of the history of abortion jurisprudence.

Table 3 shows a coded example of a more complex sentence in which several levels of evaluation interact to keep the authorial voice in the background while enabling other voices to do the work of advancing one particular ideological view on the facts of the past.

between affording an attitude and provoking it, and so are more sensitive to co-text and reading position for interpretation' (2005: 66, emphasis in original).

Table 3: Coding of a sample sentence (S13)

| (S13) The (2a) 'eminent common-law authorities (Blackstone, Coke, Hale, and the like),' Kahler v. Kansas , 589 U. S. ___, ___ (2020) (slip op., at 7), all describe abortion after quickening as (2b) criminal . (Italics in the original)   | (S13) The (2a) 'eminent common-law authorities (Blackstone, Coke, Hale, and the like),' Kahler v. Kansas , 589 U. S. ___, ___ (2020) (slip op., at 7), all describe abortion after quickening as (2b) criminal . (Italics in the original)   |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                                                                                                                              | Levels of Evaluation framework                                                                                                                                                                                                               |
|                                                                                                                                                                                                                                              | Inter-evaluative level                                                                                                                                                                                                                       |
| Source                                                                                                                                                                                                                                       | Blackstone, Coke, Hale, and the like                                                                                                                                                                                                         |
| Target                                                                                                                                                                                                                                       | [women and abortionists involved in] abortion after quickening                                                                                                                                                                               |
| Evaluation                                                                                                                                                                                                                                   | (2b) -prop                                                                                                                                                                                                                                   |
|                                                                                                                                                                                                                                              | Super-evaluative level                                                                                                                                                                                                                       |
| Target                                                                                                                                                                                                                                       | all [Blackstone, Coke, Hale, and the like]                                                                                                                                                                                                   |
| Evaluation                                                                                                                                                                                                                                   | t, +cap                                                                                                                                                                                                                                      |
| Target                                                                                                                                                                                                                                       | [women and abortionists involved in] abortion after quickening                                                                                                                                                                               |
| Evaluation                                                                                                                                                                                                                                   | t, -prop                                                                                                                                                                                                                                     |
|                                                                                                                                                                                                                                              | Extra-evaluative level                                                                                                                                                                                                                       |
| Source                                                                                                                                                                                                                                       | Kahler v. Kansas , 589 U. S.                                                                                                                                                                                                                 |
| Target                                                                                                                                                                                                                                       | Blackstone, Coke, Hale, and the like                                                                                                                                                                                                         |
| Evaluation                                                                                                                                                                                                                                   | (2a) +cap                                                                                                                                                                                                                                    |

Sentence (13) is an example of a typical piece of judicial writing containing embedded references. The main source of evaluation on the extra-evaluative level is represented by the ruling in Kahler v. Kansas 6 from  which  a  quotation  containing  an  explicit  evaluation  in  (2a)  is  extracted  (see  rows Source, Target, Evaluation under the Extra-evaluative level). For this extra-evaluative source, the targets of evaluation are represented by the ' eminent common-law authorities' (2a, bold added to indicate explicit evaluation), who are evaluated positively using the attitudinal resources of Judgment (Social Esteem: Capacity). The same quotation from the ruling in Kahler v. Kansas also contains an evaluative realization on the inter-evaluative level (see rows Source, Target, Evaluation under the Inter-evaluative level). Indeed, here it is claimed that the aforementioned common-law authorities ' all describe abortion after quickening 7 as criminal ' (italics in the original, bold added to indicate explicit evaluation). In other words, both the women who asked for them, and the abortionists who performed abortions after quickening, become targets of negative evaluation in (2b) (Social Sanction: Propriety). The authorial voice on the super-evaluative level makes itself visible by italicizing all to refer to the eminent common-law authorities. This italicizing, first, helps the reader to infer that the authorial voice not only acknowledges, but concurs with the positive extra-evaluation offered in Kahler v. Kansas to emphasize the capacity and authoritativeness of these historical actors. Secondly, the addition of italics has the intended effect of intensifying the condemnation of the practice of abortion after quickening in (2b), implicitly labelling the people involved as criminals.

As suggested by Myskow (2018a: 349), the information collected for the individual sentences on the extra-evaluative level can be extracted from the individual tables and re-arranged in comparable lists in order to present 'the official, sanctioned view of the text' more clearly, as shown in Table 4:

6 See Kahler v. Kansas , 589 U.S. \_\_\_ (2020), https://supreme.justia.com/cases/federal/us/589/18-6135/.

7  That is to say, 'the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy' (p. 16).

Table 4: Evaluative acts on the extra-evaluative level in (S10) and (S13)

| S10                                                                                                             | S13                                                                                                         |
|-----------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------|
| Explicit negative Appreciation of Roe                                                                           | Implied positive Capacity of common-law authorities                                                         |
| Explicit negative Appreciation of Roe's historical analysis                                                     | Implied negative Propriety of the behavior of women and abortionists involved in abortions after quickening |
| Explicit negative Appreciation of Casey                                                                         |                                                                                                             |
| Implied positive Appreciation of the complexity, logic, and importance of the history of abortion jurisprudence |                                                                                                             |

The analyses of the two sample sentences presented in Tables 2, 3, and 4 show that the framework developed by Myskow (see Section 2.3 above) is flexible and accurate enough to be employed in a systematic investigation of  the  evaluative  features  in  a  specific  genre  of  legal  writing.  The  next section details the findings of the analysis that was carried out by coding the sixty-three individual sentences in the excerpt under investigation here. 8

## 3.3 Presentation of the findings

The primary aim of this exploratory, qualitative analysis is to identify a set of strategies that the majority justices employ to express evaluative meanings in the purportedly dispassionate, objective and  discretionless  process  of  judicial  decision-making  (cf.  Segal  &  Spaeth  2002).  The  main evaluative pattern that the application of Myskow's Levels of Evaluation framework has enabled me to discover is represented by the preference for incorporating explicit evaluations at the inter- or extra-evaluation  levels,  and  not  on  the  super-evaluative  one.  This  means  that,  in  the  excerpt  in question, it is inter- and extra-evaluative voices that 'perform the work' of presenting a particular viewpoint on the events of the past. This viewpoint is then used by the super-evaluative voice to construct its narrative of preRoe abortion jurisprudence. The working mechanism of this strategy has been illustrated in the coded example of (S13) above (see 3.2). Further examples are given below:

- (S17) And  writing  near  the  time  of  the  adoption  of  our  Constitution,  William  Blackstone explained  that  abortion  of  a  'quick'  child  was  'by  the  ancient  law  homicide  or manslaughter' (citing Bracton), and at least a very 'heinous misdemeanor' (citing Coke). (p. 17)
- (S37) The 'most important early American edition of Blackstone's Commentaries,' District of Columbia  v.  Heller ,  554  U.S.  570,  594  (2008),  reported  Blackstone's  statement  that abortion of a quick child was at least 'a heinous misdemeanor' […]. (p. 20)

In (S17) and (S37) the presence of the super-evaluative voice can be detected only by analyzing the use  of  the  inter-  and  extra-evaluative  resources.  In  (S17),  multiple  inter-evaluative  voices  are introduced. Among these we find William Blackstone, an English common-law authority from the 18 th century, who quotes a 13 th -century treatise by Henry Bracton, as well as a 17 th -century treatise by Sir Edward Coke. This interaction between historical actors is used to present an explicitly and unequivocally  negative  evaluation  of  the  act  of  aborting  a  'quick  child'  that  is  described  as 'homicide, manslaughter [and at least] a very 'heinous misdemeanor''. The structure and evaluative realizations  in  (S37)  mirror  those  discussed  above  in  the  case  of  (S13),  with  inter-  and  extraevaluative voices - again with Blackstone as a protagonist quoted in another previous Supreme Court ruling, District of Columbia v. Heller - that are leveraged to align the reader with an authoritative negative viewpoint toward the act of aborting a 'quick child'. In (S22), other inter-evaluative voices, belonging to unnamed judges in historical court cases, are introduced for the same purpose:

8  Longer quotations from primary sources were excluded.

- (S22) […] in the 1732 case mentioned above, the judge said of the charge of abortion (with no mention of quickening) that he had 'never met with a case so barbarous and unnatural.' 9 (p. 18)
- (S23) Similarly, an indictment from 1602, which did not distinguish between a pre-quickening and post-quickening abortion, described abortion as 'pernicious' and 'against the peace of our Lady the Queen, her crown and dignity.' […] (p. 18)

In  the  examples  discussed  above  (S17,  S37,  S22,  S23),  explicit  attitudinal  lexis  (e.g., heinous , barbarous , unnatural, pernicious ,  etc.)  is  never  employed directly by the super-evaluative voice. This is not to say that instances of explicit evaluations are not found on the super-evaluative level: see, in addition to (S10) discussed above, also the following examples (emphasis added to indicate evaluative realizations):

- (S31) And it is revealing that  Hale and Blackstone treated abortionists differently from other physicians or surgeons who caused the death of a patient 'without any intent of doing [the patient] any bodily hurt.' […] (p. 19)
- (S46) At any rate, the original ground for the quickening rule is of little importance for present purposes because the rule was abandoned in the 19th century. (p. 22)
- (S55) This overwhelming consensus endured until the day Roe was decided. (p. 24)
- (S59) The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions. (p. 25)

In these examples the super-evaluative voice explicitly and strongly construes its authorial position that the reader is expected to align with. This is done, as predicted by Myskow, by using unmediated, categorical assertions of the kind we find in (S46), (S55), and (S59). This strategy represents a second typical pattern that characterizes the use of evaluative language in the text under investigation.

## 4. Analysis of the temporal dimension in the majority opinion

In this section, I propose to enrich the methodology of Myskow's Levels of Evaluation framework by adding a layer of 'the valorative symbolic representation' of time as discussed by Oteíza and Pinuer (2013). For reasons of space constraints, the discussion will be limited to the most salient aspects of Oteíza and Pinuer's contribution and its application to the case-study under investigation. The time framework in historical discourse, as Oteíza and Pinuer have argued, can be employed by the authorial voice as a strategy to align the reader with a particular perspective of the past; in that respect, investigating the temporal dimension in historical discourse is justified by considering

[its] fundamental and global role in the interpretation of the discourse of history [that is] due to  the  fact  that  authors  fashion  a  symbolic  representation  of  the  time  framework  which  is critical to the construction of the argument and the evaluative orientation of the discourse. (2013: 7)

By further developing the extension of the sub-syste ms FORCE and FOCUS of the semantic system of GRADUATION proposed by Hood (2010) for the analysis of academic discourse, Oteíza and Pinuer (2013: 8) aim 'to better understand the ways historians and sociologists construct a symbolic valorative 'scenification' of time in historical explanations [of the recent national past].' This is done by differentiating between chronological, on the one hand, and, on the other, 'less' chronological and 'more' symbolic representations of time in historical discourse. To exemplify this distinction, for the

9 While it is beyond the scope of this paper to discuss the accuracy of the majority justices' assessment and interpretation of the historical cases they relied on, it is necessary to observe that the use of this particular case, dating back to 1732 and involving the charge of manslaughter against Eleanor Beare, has been hotly debated in the press.

21

20 -

19

18

TIME IN

DISCOURSES

HISTORICAL

17

century

16

15

14

13

12

11 -

10

* CHRONOLOGICAL

→

+ CONGRUENT REALIZATIONS

Duration and sequencing of social

economic and political processes

first category, Oteíza and Pinuer offer the use of grammatical structures that 'express phasing, setting in time, segmenting time, sequencing and duration' (2013: 9); in that category we find, second half of the sixties; in 1969; the sixties; a few months before; for some time . All these temporary instances, they argue, can be used 'to build time from specific valorative perspectives' (Oteíza and Pinuer 2013: 9). A range of metaphorical resources, on the other hand, can be used to create more symbolic representations of time. As Oteíza and Pinuer explain,

the noncongruent resources of FORCE as time codified by nominalizations and processes [can] work in a combined manner with the meaning of ATTITUDE to construct the symbolic representation of time framework in historical discourses. (2013: 13)

Oteíza and Pinuer's approach to the analysis of time dimension in historical discourse is presented in Fig. 2:

Fig. 2: Time dimension in historical discourse (Oteíza and Pinuer 2013: 17)

<!-- image -->

The frequency of a range of temporal expressions in the historical section of the majority opinion in Dobbs v. Jackson calls for an exploration of the ways in which time is represented here. A closer scrutiny  of  such  expressions  shows  how  both  prototypical  and  more  specialized  structures  are employed in the text not only to chronologically codify the unfolding of the past events in question, but to actively construct a particular ideological perspective toward these events. Fig. 3 below shows the frequency and the distribution of the range of temporal expressions found in the excerpt under investigation:

<!-- image -->

Fig. 3: Overview of the use of temporal expressions in the excerpt

The most frequently used references in the excerpt are to the events that took place either in the 19 th (8 occurrences) or in the 20 th centuries (9 occurrences). The remaining ten occurrences are distributed between the 13 th century (2 occurrences), the 17th century (4 occurrences), and the 18th century (4 occurrences). As summarized visually in the graph, the reconstructed narrative rests on a varied assemblage  of  selected  historical  facts  that  occurred  some  time  between  the  13 th and  the  20 th centuries. The non-linearity of the graph emphasizes the special attention given to some well-defined historical entry points, as the following examples of the use of temporal structures show:

## Group 1

(S1) Until the latter part of the 20th century; (S3) Until a few years before Roe was handed down; (S5) only a few years before Roe ; (S6) right until shortly before Roe ; (S55) until the day Roe was decided;

## Group 2

(S9) By the time of the adoption of the Fourteenth Amendment; (S17) near the time of the adoption of our Constitution; (S51) By 1868, the year when the Fourteenth Amendment was ratified.

## Group 3

(S14)  Henry  de  Bracton's  13th-century  treatise;  (S15)  Sir  Edward  Coke's  17th-century treatise.

The most frequent historical entry point is the 1973 Roe decision (see examples in Group 1). Other significant occurrences that are used to establish the temporal framework include references to some specific events in American history (Group 2), as well as references to the contribution of a group of several influential historical actors (Group 3). Overall, the strategy of repeatedly referring to a limited selection of historical facts and actors creates a sense of a static, unvarying, frozen version of the past 700 years - roughly measured from the time Henry de Bracton's treatise was published in mid-13 th century until the day Roe was decided in 1973 - during which abortion (especially after quickening) appears to have been perpetually and unanimously considered as a criminal, heinous, and barbarous activity. This selection of facts, for example, does not include any references to the previous Supreme Court rulings on reproductive rights that were discussed in Section 3.1 of the present paper. It is therefore an arbitrary selection which is based on an argumentative purpose.

## 5. Conclusion

This paper has conducted an exploratory investigation into the use of evaluative language in the historical  section  of  the  majority  opinion  in Dobbs  v.  Jackson .  The  analysis  has  shown  that adaptations to  Appraisal  Theory  proposed  by,  most  importantly,  Myskow (2018a)  and  Oteíza & Pinuer (2013) for the analysis of historical discourse, can be fruitfully applied to the analysis of this particular type of judicial writing.

By systematically coding and describing a small excerpt from the majority opinion that purports to reconstruct, in an objective and dispassionate manner, the facts of the past to justify the Court's decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey , it has been possible to show how invoked and inscribed evaluative meanings permeate the text consistently, achieving the intended rhetorical effect of an increasingly negative evaluative prosody. In terms of the specific subsystems of the Appraisal framework, the subsystem of Engagement, that 'helps us to explore the source of evaluations' (Oteíza 2009: 614), was found to be of particular importance in the investigation of the ways in which the authorial voice construes its attitudinal positioning (cf.

Myskow 2018a). The findings of this small-scale study have shown significant differences in the degree  of  negative  explicitness  when  it  comes  to  the  specific  lexical  choices  employed  by  the different voices introduced to construct a particular version of the past. While the lexis on the interand extra-evaluative levels was found to be unequivocally vituperative in the assessment of abortion (mainly of  'a quick child'), of the behavior women who sought to abort a quick child and of the willingness of abortionists to perform such abortions (e.g., criminal , pernicious , barbarous , to name but a few examples), the authorial voice on the super-evaluative level showed a marked preference for less explicitly negative evaluations. In other words, the majority opinion appears to rely mainly on a selection of authoritative inter- and extra-evaluative voices that guide and align the reader with a particular ideological narrative of historical facts - a narrative that is imbued with an increasingly negative prosody - while attempting to maintain a degree of neutrality and objectivity expected from a legal text.

Short,  but  highly  powerful  pieces of  discourse 10 that  have  the  effect  of  changing  the  lives  of millions of people, such as the text analyzed in this paper, are of utmost interest to linguists. In future research,  the  manual  investigation  conducted  here  can  be  supported  by  a  computer-assisted annotation procedure in the coding of evaluative features (for example, by using the UAM Corpus Tool, see 2.1 above) and applied to larger samples of legal texts dealing with historical facts. To conclude, the present investigation has contributed to an important research area of an SFL-based tradition of legal discourse studies whose ultimate goal is to '[provide] sufficient evidence to raise the suspicion that [legal] texts presented as grounded in logic and objectivity are not fully what they claim to be' (Douthwaite & Vasta 2001: 33).

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