The Influence of Public Sentiment on Supreme Court Opinion Clarity

When the Supreme Court makes a decision contrary to public opinion, justices are likely to worry the Court will lose public support. So, what are justices to do? One option, of course, is to move the policy content of the opinion closer to public sentiment. Yet, we know that justices seek, among other things, ideological goals (Epstein and Knight 1998) and would prefer to effectuate them when feasible. Another option, then, is to seek their policy goals while mitigating the possible loss of public support. It is on this perspective we focus. We argue that justices, when they rule contrary to public opinion, will vary the clarity of majority opinions in an effort to maintain public support as best they can. While the Court has a deep reservoir of diffuse support, frequent counter-majoritarian decisions could leave it at risk (Gibson et al. 2003: 365). By writing a clear opinion when ruling against public sentiment, justices can better inform the public why they so decided, and thereby manage any immediate loss of support they might suffer-or, think they might suffer (see, e.g., Nelson, N.d.). We develop a measure of opinion clarity based on automated textual readability scores that we validate using human raters. Our results show public opinion strongly influences the content of Court opinions. Importantly, we analyze both macro- and case-level public opinion, providing broad-based support for our findings. In one approach, we compile an aggregate data set that includes Court decisions from 1952 to 2011, and execute a time series analysis that scrutinizes opinion clarity as a function of yearly changes in public mood. In a second approach, we rely on issue-specific public opinion polls that directly relate to individual Supreme Court cases (Marshall 1989, 2008). Using these microlevel data, we analyze the content of specific majority opinions to determine how public opinion influences Supreme Court opinion clarity. Both empirical analyses offer considerable support for our argument that justices write clearer opinions when they deviate from public sentiment. What is more, our measure of opinion clarity is one scholars who study other institutions could employ.These findings are important for a number of reasons. First, it is the content of the Supreme Court's opinions that influence society's behavior. Actors within society look to those opinions to determine whether they can engage in particular behaviors (Spriggs and Hansford 2001). "[S]cholars, practitioners, lower court judges, bureaucrats, and the public closely analyze judicial opinions, dissecting their content in an endeavor to understand the doctrinal development of the law" (Corley et al. 2011: 31). People must understand the content of opinions and, as such, scholars should understand the factors that influence those opinions. Our results speak to how the Court crafts the content of those opinions.Second, the results address the Court as one institution in a broader political system where justices know they do not necessarily have the last word. That is, our approach shows how the Court is tied into a larger network of actors and audiences in the American political and legal system (Baum 2006). Rather than focus on how justices influence others, we show how others (i.e., the public) can influence justices. At the same time, knowing justices intentionally alter the language of their opinions to overcome audience-based obstacles tells us something that speaks to broader normative debates about democratic control. Justices appear to do what they can to overcome obstacles from public opinion. So, while public opinion seems to influence their behavior, justices appear able to circumvent the constraints of public opinion by tailoring their messages. For those interested in ensuring more accountability of judges, these results suggest such control is perhaps more difficult than previously believed.Third, understanding how the Court alters its opinions can inform us about how the Court acquires and maintains judicial legitimacy. …