Do Constitutional Courts Write Their Opinions Differently Under Public Scrutiny?

Abstract

How does public scrutiny affect the opinion-formation of highest courts? Established scholarship shows that public opinion impacts the outcome of judicial decisionmaking. However, while the focus of judicial politics research rests with outcomes of decisions, the impact of public scrutiny on the whole opinion-formation remains puzzling. I present a novel approach to assess the effects of public scrutiny on opinion writing and the quality of decisions taking judicial opinion-formation seriously. In particular, I analyze judicial argumentation structures, applying natural language processing approaches to judicial politics. I argue that oral hearings increase public attention and moderate the interaction of judges with external actors involved in court procedures. The broader public attention brought to proceedings by oral hearings incentivizes judges to improve the responsiveness of written opinions to arguments presented by external actors. I expect courts to argue each point of the legal discussion in greater detail, by addressing briefs presented to them more closely. I apply my approach to the whole text of decisions published by the German Federal Constitutional Court between 1972 and 2019. The court is a role-model for many highest courts with constitutional review powers and hearings are a common feature of courts’ decision-making.

Status: Draft presented @ ECPR 2020