No abstract

Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions, while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity in majority or concurring opinions. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.

We argue that actors can attempt to shield their policy choices from unfavorable review by crafting them in a manner that will increase the costs necessary for supervisory institutions to review them. We apply this theory to the US Supreme Court and demonstrate how justices strategically obfuscate the language of majority opinions in the attempt to circumvent unfavorable review from a politically hostile Congress. The results suggest that Supreme Court justices can and do alter the language of their opinions to raise the costs of legislative review and thereby protect their decisions.

In the struggle to control the federal bureaucracy, presidents have an overlooked but powerful tool: the recess appointment. By making recess appointments, presidents can fill vacancies without the advice and consent of the Senate. The authors delineate three conditions that define presidential unilateral powers and demonstrate how recess appointments fit within that paradigm. Presidents, the authors argue, should be more likely to make recess appointments to important policy-making positions, namely, major independent agencies. The authors compile a data set of every civilian nomination and recess appointment between 1987 and 2004. After controlling for other factors, the authors find strong support for their theory.

This book is the first study specifically to investigate the extent to which U.S. Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions.