Vol. 27 No. 3 (April 2017) pp. 47-48

U.S. SUPREME COURT OPINIONS AND THEIR AUDIENCES, by Ryan C. Black, Ryan J. Owens, Justin Wedeking and Patrick C. Wohlfarth. Cambridge, United Kingdom: Cambridge University Press, 2016. 185pp. ISBN: 978-7-107-13714-1.

Reviewed by Michael A. Bailey, Colonel William J. Walsh Professor, Department of Government and McCourt School of Public Policy, Georgetown University. Email: Michael.Bailey@georgetown.edu.

Every professor has read essays by students who, well, don’t know what they are talking about. These essays ramble on with long, convoluted sentences and non-sequiturs. These papers are usually finished after 3 am, early in the morning the day the paper is due. In their own way, these papers eloquently testify to the how ill prepared the student was for the assignment.
Black, Owens, Wedeking and Wohlfarth’s U.S. Supreme Court Opinions and Their Audiences allows us to cast a similar eye on what the Supreme Court does. Based on extensive and sophisticated statistical analysis they are able to learn about Supreme Court goals and behavior based on the clarity of the “papers” (opinions) that justices write.

The authors posit that justices write opinions in order to enhance compliance with their decisions and to manage public support for their rulings. Just as I knew that things were getting serious when my mother would e-nun-ci-ate her requests very clearly, so too, the authors argue, should the lower courts and other actors take more seriously Supreme Court opinions that are clearly presented. On the other hand, when the Court is a bit sheepish about what it is doing, it may obfuscate with long sentences, legal jargon and impenetrable prose.

The book revolves around an extensive coding of Supreme Court opinions based on their readability. There are many ways to assess readability and in order not to lean too heavily on a single measure, they factor analyze a large number of different automated coding measures. These measures are based on things like words per sentence and syllables per word. Black, Owens, Wedeking and Wohlforth show that these measures predict comprehension and expected compliance when a sample of undergraduates were asked to read cases of varying readability.
The book assesses a broad range of hypotheses related to the book’s core prediction that justices will be clearer when they should be most worried about compliance. The authors find that Supreme Court justices write more readable opinions when the circuit courts are more dispersed, suggesting they are trying harder to keep lower courts in line. Supreme Court “justices write clearer opinions when ruling against a lower quality agency” (p. 157). They also tend to write clear opinions when dealing with less professionalized states.

The results are quite strong across virtually every test. This is impressive because there is at least some slippage between the theoretical concept of writing to ease enforcement and writing to be readable. For example, a court interested solely in enforcement could articulate a “bright line” test. Even if they do this in an insufferably pompous way, lower courts, the police and everyone else will have a hard time sidestepping the court’s mandate. On the other hand, I could imagine some cases in which the Court could write a very readable, yet legally ambiguous, opinion. A justice could juice his or her readability score by sneaking a Harry Potter book into an opinion, yet this would, I suspect, do little to enhance legal clarity.

The authors take readability to heart. The book is remarkably clear written. In fact, and I hesitate to say this about any academic book, it may be too clear at times, making overly declarative statements like “opinion clarity removes lower court discretion” (p. 66). Opinion clarity as a bright line standard may limit lower court discretion and opinion clarity as readability may also limit lower court discretion. But judges at all levels are too varied – and resourceful – for us to believe discretion can be completely removed.

While this book is quite comprehensive, it opens the door to other possible analyses. So-called super precedents have outsize influence on subsequent legal development. Are they particularly clearly written? Each justice has, I suspect, quite a different style of writing. The authors include justice-specific fixed effects in their “full” specifications in each chapter (where relevant), so their analyses are not undermined by such differences. Nonetheless, it would be interesting to identify and analyze these differences. Just how much do justices vary in readability? How much does a single justice vary? Since they estimate fixed effect models, there must be variation within justices and I think court scholars would be interested in these differences. I also suspect that there is heterogeneity in how much justices craft their opinions in the ways identified by the book. A justice-by-justice breakdown of some of these models would reinforce the robustness of results while also providing interesting context. Some justices may be more moved by public opinion than others, something that would be interesting to observe. In addition, some cases are inherently harder to write clearly about. The authors have controls for case complexity and other case characteristics. The readability of lower court opinions could be a useful additional measure of case-specific inherent aspects that affect the readability of opinions.

Some cases fit better than others. The FURMAN decision that struck down the death penalty in 1972 was a very clear opinion (by their measure, p. 127), which makes sense given the sensitivity of the case. The first BROWN V. BOARD OF EDUCATION in 1953 was also reasonably clear, but the second BROWN decision was not at all clear by their measure. If the Court was worried about enforcement, BROWN II would have been the time to be crystal clear; instead, they were retreating into ambiguity in the face of resistance to their decision.
In summary, people looking for a clear exposition of when and why the Court produces clear opinions should buy and read this book.




FURMAN V. GEORGIA, 408 U.S. 238 (1972)

©Copyright 2017 by author, Michael A. Bailey.