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?”