Elections and Explanations: Judicial Elections and the Readability of Judicial Opinions

How do judicial elections affect the propensity of judges to write opinions that are understandable to the public? Drawing on a growing literature that analyzes the content of judicial opinions computationally, I examine the readability of all state supreme court search and seizure decisions from 2000-2010. I assess the hypothesis that, just as judicial elections increase judges’ propensities to follow public opinion when voting on the merits of a case, the presence of these retention institutions also provides incentives for judges to justify their opinions in language that their constituents can readily understand. However, when elected judges fear a difficult path to retention, they tend to write opinions that are more difficult for the average constituent to understand. ∗The author would like to thank Andrew D. Martin, Jim Gibson, Jim Spriggs, Alicia Uribe, Morgan Hazelton, and Keith Schnakenberg for helpful comments, Rachael Hinkle for helping with the acquisition of cases, Tom Clark, Brandice Canes-Wrone, Carl Klarner, and Emerson Tiller for data, and Nicolas Dumas and James Boyce for fantastic research assistance. Elections and Explanations: Judicial Elections and the Readability of Judicial Opinions Michael J. Nelson Politicians must be able to justify the decisions they make to their constituents. A long line of research has shown that the nature of a representative’s constituency affects both the decisions that elected officials make and the ways in which they present themselves to their constituents (Mayhew 1974; Fenno 1977; Arnold 1990; Grimmer 2010). Yet, the constituency of any elected official is heterogeneous, and, in many cases, elected officials can justify the same decisions to different constituents in different ways (Fenno 1977; 1978). Thus, it is difficult to assess how elections affect the justifications offered by elected officials. Moreover, because all legislators in the U.S. must stand for election, it is challenging to determine how those justifications would differ in the absence of the electoral process. However, one class of officials must provide a formal rationale for every important decision they make: judges. A body of judicial politics research has established that the use of an electoral institution to retain a judge affects the decisions she makes on the merits of the case and her propensity to heed public opinion as she decides the case (Brace and Boyea 2008; Caldarone, Canes-Wrone, and Clark 2009; Hall 1987) while other research (Staton 2010) has demonstrated that even unelected judges care about explaining their decisions to the public. Still, the effects of judicial elections on the content of judicial decisions have received less attention (but see Goelzhauser and Cann 2013). While the outcomes of judicial decisions are important, the content of judicial opinions—the explanations they provide along with their decision—is vital to study because it sets legal rules which must be followed by lower courts (Friedman 2006). Beyond its precedential effect, research (Zink, Spriggs, and Scott 2009; Simon and Scurich 2011) indicates that the content of judicial opinions and the types of legal reasoning explained by judges can affect the public’s response to judicial opinions; other research (Hume 2006; Hansford and Spriggs 2006) indicates that judges are strategic when selecting the sources they will marshall to bolster their opinion. Moreover, because judges in some states are elected while other judges need not