Friday, November 19, 2010

Writing Supreme Court Opinions

I often ask my students why they think the U.S. Supreme Court hands down written opinions. The question traditionally comes on the heels of a maddeningly if unnecessarily complicated opinion, when the justices choose to join parts of a majority opinion but not others, choosing instead to concur in part or in the judgment. Just this past week, for example, during our discussion of Thornburg v. Gingles, we encountered the following:
BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, an opinion with respect to Part III-C, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Part IV-B, in which WHITE, J., joined. WHITE, J., filed a concurring opinion, post, p. ---. O'CONNOR, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. ---. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, post, p. --. 
In Gingles, the Court was assigned the task of interpreting the recent Amendments to Section 2 of the Voting Rights Act. Setting aside for the moment the question of interpretive philosophy, why did the Court feel compelled to issue an opinion totaling close to 25,000 words, and with so little agreement among the justices? In specific reference to constitutional cases, why doesn’t the Court simply announce its judgment and nothing more, that is, why doesn’t it simply tell us who wins and who loses and save the trouble of writing opinions?

The usual answer is the guidance rationale. That is, the Court writes opinions as a guide to the future, for lower courts, the relevant political actors, and the public at large. But according to Adam Liptak’s recent piece in the N.Y. Times, this is no longer a rationale that makes any sense, if it ever did. In Liptak’s words, “In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length.”

What, then, to make of the justices’ penchant for expressing themselves? That is, to put the question in a way that actually makes sense: who in the world are the justices’ talking to?
Clearly, they are not talking to the lower courts, nor are they talking to the elected branches. Their opinions are far too long-winded and vague for that to be true. They are also not talking to the public at large, for similar reasons. Getting through an opinion – think here the recent campaign finance opinions, from Citizens United to McConnell, or the recent Parents Concerned, which came in at a whopping 47,000 words – is no small feat. If they were really trying to talk to the public at large, they should stick with shorter, unanimous opinions, in the mold of Brown v. Board of Education.

The justices also cannot possibly be trying to speak to future generations as they try to secure their place in the judicial Parthenon. Nitpicking in the way that present justices do is hardly the way to secure immortality. And further, as Fred Shapiro, Yale Law School librarian explains, “[t]hey also don’t make great Supreme Court passages the way they used to.”

The only answer that makes sense is that the justices are talking to each other, and maybe even to themselves. This is a Court, keep in mind, which is not shy about re-writing federal statutes as they suit its purpose – see, for example, Namudno v. Holder – overruling long standing precedents – see Citizens United – or taking cases it does not need to hear in order to impress its own views on the law – see the recent environmental law cases decided in the last few years. This is a Court, in other words, happy to overreach. The label that comes to mind is “judicial hubris.” The justices do not need to concern themselves with the political branches or the public at large, secure in the belief that there will be little push back from their decisions. That being the case, the justices appear free to decide cases as they see fit, untethered by consensual norms or any need to provide any guidance whatsoever. Their idiosyncratic views on the law, and their need to express them, come first.

This is worth keeping in mind next time you think about the conservative justices as paragons of judicial restraint. A much better label might be that of philosopher kings.

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