ABSTRACT
The process of crafting an opinion is predicated on the understanding that while a single author may write the decision into law, their language is determined by attempts to cultivate consensus with others on the bench. Judges debate what points of law should be focused on, elaborated, and even removed. The voting process dictates the initial outcome, but the language of an opinion may shift the final majority prior to the announcement. We believe that as judges bargain over opinion language, the number of viewpoints considered in the opinion should increase, compelling judges to focus specifically on writing persuasively rather than simply justifying their choices. As a result of this bargaining, we expect that opinions that exhibit greater bargaining should likewise be longer and thus require stronger reading comprehension on the part of peripheral audiences compared to opinions that have a minimum winning coalition. The trade-off between prioritizing persuasiveness over justification in the opinion should increase the size of the winning coalition, which should better insulate judges from backlash from retention audiences. We therefore assume that this bargaining will result in more complex opinions, and this added degree of complexity should increase the likelihood of a unanimous decision.
