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November 28, 2005
Why does the Supreme Court accomplish so little?
Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.
A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It’s not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.
Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices. As a result, most opinions are inaccessible to non-specialists. It is a rare delight these days to get an opinion that crisply and simply sets out the decision of a unanimous Court. Were it not for people like Linda Greenhouse of The New York Times, skillfully decoding the justices’ language, the general public would have no idea what the Court was doing.
This need not be so. Brown v. Board of Education (1954), one of the Court’s most important decisions ever, was unanimous and ran just seven pages. Anybody could read it and see what the Court had said. To be sure, the reader might disagree with Brown or even wonder how the Court reached the result that it did. But it’s unlikely that multiple concurring opinions spreading over a hundred pages or more would have changed any reader’s mind.
My advice for Chief Justice John G. Roberts: double the number of cases the Court decides (it decided 123 the term Roberts clerked for Rehnquist), halve the length of opinions, make unanimity the goal, and discourage separate concurrences.
How might that be done? Jurors are asked to review piles of information and to reach unanimous decisions—and we keep them locked up until they do. Perhaps the justices should be sequestered.
Alternatively, the Court’s practice throughout much of the nineteenth century offers a model. Nineteenth-century justices (some of whom lived together) resolved cases over lengthy dinners. Justice John McLean, who served on the Court from 1830-1861, described the practice this way:
Before any opinion is formed by the Court, the case after being argued at the Bar is thoroughly discussed in consultation. Night after night, this is done, in a case of difficulty, until the mind of every judge is satisfied, and then each judge gives his view of the whole case, embracing every point in it. In this way the opinion of the judges is expressed, and then the Chief Justice requests a particular judge to write, not his opinion, but the opinion of the Court. And after the opinion is written, it is read to all the judges, and if it does not embrace the views of the judges, it is modified and corrected.
The advantages of this approach seem clear: put in the time at the beginning, over food and drink, to reach a decision and then write it up—rather than write first and hope somebody else will get on board.
There are some very nice homes with comfortable dining rooms in Georgetown. I can almost hear it now: “Nino, red or white?”
Posted by Jason Mazzone at November 28, 2005 07:45 AM
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Comments
I'd be thrilled if Congress only voted on 74 laws per session, or if the Federal Register only increased by 74 pages each year.
Posted by: KipEsquire at November 28, 2005 09:53 AM
Judge Posner's Foreword to this year's Harvard Law Review Supreme Court edition addresses this question. He explains, quite persuasively I think, that your deliberation model of how appellate courts should operate is seriously flawed.
Posted by: Pk at November 28, 2005 11:21 AM
"Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices."
Concurrences, footnotes, swipes at other justices ... this is far from new. Brown is rather atypical, esp. for such an important precedent. If you really want to look at hard to read opinions, reading some of the pre-clerk opinions back when the Court's caseload was quite large is pretty good reading.
Posted by: Joe at November 29, 2005 01:41 AM
I am puzzled by the number of people who think that clarity goes hand-in-hand with unanimity. As long as there is an opinion of the Court, the fact that there may be dissents is irrelevant to the clarity of the rule in the majority opinion.
Now, one might argue that a 5-4 decision, even if written clearly is unstable because a shift on the Court could overturn the precedent. But if a 5-4 case achieves unanimity because the opinion is written generally and removes all reasoning, then the law is just as unstable.
Following the last point, unanimous decisions are achieved through compromise language, which is unlikely to be clear. Disagreements are papered-over for the sake of unanimity, and the vague opinion that results is not likely to add clarity to the law.
Finally, compromise opinions tend to be short on reasoning, which I believe to be a major defect. If one Justice arrives at a result through one theory and another Justice arrives at the same result through a different theory, writing seriatim actually clarifies the law because one can more easily discern each Justice's likely approach to the next case. Pretending that the whole Court agrees does nobody any good.
Posted by: Mike Dimino at November 29, 2005 10:12 AM
Regarding the complexity vs. simplicity of opinions:
The nature of man is intricate; the objects of society are of the greatest possible complexity; and, therefore, no simple disposition or direction of power can be suitable either to man's nature or to the quality of his affairs. When I hear the simplicity of contrivance aimed at and boasted of in any new political constitutions, I am at no loss to decide that the artificers are grossly ignorant of their trade or totally negligent of their duty . . . [I]t is better that the whole should be imperfectly and anomalously answered than that, while some parts are provided for with great exactness, others might be totally neglected or perhaps materially injured by the over-care of a favorite member.Burke, Reflections on The Revolution in France
Posted by: Simon at November 29, 2005 10:13 AM
As a side point, back in "the day" when the Court heard 100+ cases per year, e.g., when Roberts clerked for Rehnquist, the Supremes still had fairly extensive bases of mandatory appellate jurisdiction, and decided a number of those cases through "summary affirmances," which, as we all know, have no precedential effect. (For a discussion, see Justice Scalia's dissent in Hohn v. U.S., 524 U.S. 236, 259-60 (1998)). Congress did away with all but the tiniest of mandatory bases for Supreme Court jurisdiction in 1988... all that's left today is reapportionment cases and others expressly provided for by statute (e.g., McCain-Feingold).
So, "more" doesn't by any means equal "better." If anything, history suggests that any forcible increase in the Court's docket would only lead to a resurgence of such summary, useless "opinions."
Posted by: Steve Vladeck at November 29, 2005 11:00 AM
