Vol. 30 No. 6 (July 2020) pp. 96-99CREATING THE LAW: STATE SUPREME COURT OPINIONS AND THE EFFECT OF AUDIENCES, by Michael K. Romano and Todd A. Curry. New York: Routledge, 2020. 184pp. Cloth $124.00. ISBN: 978-1-138-61683-7. Paper $35.96. ISBN: 978-1-138-61684-4.
Reviewed by Abigail A. Matthews, Department of Political Science, University at Buffalo, SUNY. Email: aamatthe@buffalo.edu.
For whom do state supreme court justices write? And how do those audiences affect a state supreme court’s opinion? Those are the primary questions Romano and Curry address in CREATING THE LAW: STATE SUPREME COURT OPINIONS AND THE EFFECT OF AUDIENCES. In one of the first book-length analyses of the state supreme opinion writing process, Romano and Curry build on the work of federal court scholars such as Maltzman, Spriggs, and Wahlbeck (2000) and Baum (2006), arguing that state supreme court judges engage in strategic behavior to achieve policy goals while simultaneously protecting their vulnerable authority, thanks to shorter tenure periods than Article III judges. Harnessing the research potential from variation among the states, Romano and Curry seek to understand how audience, environmental, and institutional factors constrain the opinion writing process.
A key assumption upon which they build their argument is that state supreme court judges are political representatives. While judges do not have the same tools as legislators to remind voters of who they are and the work they do, Romano and Curry argue that these judges can engage in credit claiming by strategically writing their opinions. When judges explain their choices in their written opinions, they are using the space to appease their constituents’ audiences, Romano and Curry argue. They go on to connect this to retention incentives and legal language. Unlike traditional political representatives who rely on various mediums to credit claim, judges put all their decisions in writing for the public to read (p. 22).
Building from the assumption that state supreme judges are political representatives, a critical question in CREATING THE LAW is who makes up the judges’ constituency. According to Romano and Curry, those who vote to keep judges in their seats are the “authorizing” or “constituency” audience. In retention systems, citizens are the authorizing constituency and in states that appoint justices, governors or legislators are the justices’ audience. Yet the constituency is not the only audience for whom judges write; judges also write with fellow members of the court in mind. The book’s [*97] research design does a good job balancing efforts to measure and analyze the authorizing constituency with the influence of court colleagues.
Diving into the language of the written opinions, CREATING THE LAW posits that judges are intentional in how they justify and persuade. The key to Romano and Curry’s argument is that justification and persuasion are distinct tools. Judges use justification when they want to present only one correct choice while persuasion acknowledges that there are several choices available, but the judge’s choice is the best. Persuasion requires the judge to advocate for their position and when engaging in persuasion as a tactic, judges present information to “maximize” the success of their opinion.
Romano and Curry operationalize justification and persuasion concepts as opinion clarity, argument complexity, and authenticity. They measure justification by its readability—how well a judge conveys the “correct” choice. They also measure justification by analogical reasoning language. Romano and Curry operationalize persuasion using argument complexity, or the judge’s ability to evaluate complicated situations and arrive at a decision. To further evaluate persuasion, they measure an opinion’s authenticity or tone, the counterpart of argument complexity. However, Romano and Curry note that the distinction between the justification and persuasion can be “amorphous” (p. 34). Because the authors attribute specific meanings to the terms, and because I often use the terms interchangeably, I found it to be a bit confusing at times. Examples to illustrate the terms, especially how each measure is operationalized, would have been helpful in better understanding the overarching arguments.
The book is organized into chapters based on the outputs from the opinion writing process. Using a dataset that includes the text of all state supreme court death penalty and education-related decisions from 1995 to 2010, Romano and Curry analyze over 6,000 opinions (5,206 death penalty opinions and 1,413 education opinions). The authors were intentional in how they chose which two types of cases to analyze; the issue of the death penalty represents more salient cases—cases that reach the public’s consciousness via news media—while the education cases are more of a non-salient issue. After describing the data, Chapter 3 examines framing and opinion content. Romano and Curry argue that judges are purposeful actors who select the frame depending on their audience. That is, judges consciously choose the arguments and topics upon which they will focus, and conversely, which arguments and topics they will deemphasize or ignore. Chapter 3 presents the first of a series of [*98] empirical analyses illustrating how audience and opinion content are connected.
Chapter 4 tests the effect of dissenting judges on opinion writing. Here the authors question whether dissents force judges to write more persuasively and if dissents impact the justification power of majority decision. They hypothesize that if a majority opinion writer is accommodating dissenting voices, the writing should be less clear and more persuasive. Conversely, if the dissent will not bargain, the majority opinion writer does not have to accommodate the dissent and we would expect judges to write the opinion more clearly using less complex language. From the data, Romano and Curry find that dissents are more likely when the majority opinion prioritizes persuasion through authentic writing and dissents are less likely to occur when majority focuses on justification. This is my favorite chapter of the book where all the terms and their operationalization come together. The audience that matters most in Chapter 4 is other judges on the panel. In conclusion, they connect the retention and election systems to the opinion’s language, arguing that judges with shorter term lengths prioritize consensus.
Chapter 5 analyzes per curiam opinions, an understudied process in the literature. After a thorough and enlightening background, Romano and Curry hypothesize that per curiam opinions will have a greater level of analysis, more readability, and use more justification language. Here they directly model authoritative constituencies/audiences. In appointment systems, judges are more likely to write per curiam opinions in salient cases to shield themselves against backlash. But since judges use written opinions to credit claim, Romano and Curry find that state supreme court judges are less likely to write per curiam opinions because public accountability will be less likely.
In many ways, Chapter 6 mirrors Chapter 4’s focus on dissents, but this time concentrates on unanimous opinions and the opinion writer’s efforts to get their colleagues to agree. Achieving unanimity can be difficult and opinion writers must balance persuasion and justification. Romano and Curry argue that to accommodate and bargain with colleagues, judges crafting unanimous opinions write in more complex ways, and engage in more persuasion than justification in salient cases.
CREATING THE LAW is an original contribution to the study of judicial politics that draws from the field of political communication to suggest a more comprehensive approach to the study of decisional behavior. Yet the authors underplay their contribution. Since not all [*99] readers will have a background in political communication, the book could describe its influence more and emphasize the novelty of applying this particular theory. I would have also liked more discussion about how saliency plays a role. Romano and Curry chose their issues areas to test this, but they did not thoroughly discuss saliency’s effects in the empirical results. I would have also liked more discussion of whether constituencies (elite and retention) are reading opinions and whether and how that matters.
Romano and Curry rightfully identify many future directions concerning audience representative effects in opinion-writing. Hinted at in Chapter 6, future research could consider how the opinion writing process affects court legitimacy. The book will engage state politics and judicial scholars alike because it uses newly collected data on all fifty-two state supreme courts. The authors include the technical aspects and tables in an appendix and instead present the substantive results in easily interpretable graphs. Romano and Curry describe the analyses in simple terms such that those unfamiliar with the statistics will understand the book’s findings. CREATING THE LAW will make an excellent addition to courses on judicial or state politics.
REFERENCES:
Baum, Lawrence. 2006. JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR. Princeton, N.J.: Princeton University Press.
Maltzman, Forrest, James F. Spriggs, and Paul J. Wahlbeck. 2000. CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. Cambridge: Cambridge University Press.
© Copyright 2020 by the author, Abigail A. Matthews.
