Wisdom and words go together. Conveying wisdom and truth generally entails the spoken or written word. However, they are often inversely proportional. Reasoning that requires many words often yields conclusions difficult to decipher. The current United States Supreme Court is writing more words than ever. Yet, the current Court struggles to provide clear wisdom or meaningful guidance to lower courts through its opinions.
A primary constitutional role of the Supreme Court is to provide clear direction to lower federal courts, the other branches of government, and the public at large about the meaning of our laws. This institution tells all of us what our Constitution means and how statutes passed by Congress can be applied. Moreover, the Supreme Court directs how to interpret the thousands of regulations passed by executive agencies like the Food and Drug Administration (FDA) and Environmental Protection Agency (EPA).
The Supreme Court also has the final say about the federal version of what lawyers call the “common law.” The common law is judge-created rules (as opposed to statutes passed by Legislatures) that provide the framework for most civil liability cases. Trial judges and lower courts of appeals throughout the country often disagree about these issues, and one of the Supreme Court’s key roles is to resolve and clarify gray areas that can (and do) give rise to differing judicial interpretations.
Historically, the Supreme Court handed down opinions that provided clarity of thought. In order for a Supreme Court opinion to have the force of law it must garner at least five justices to support the opinion. If a justice agrees with some, but not all, of an opinion, that justice can author a concurring opinion, which sets out the Justice’s rationale for not joining in the entirety of an opinion. Likewise, if a justice disagrees with the majority opinion, the Justice can write a dissenting opinion, which tells the public why the justice believes the majority opinion is wrongly decided. Theoretically, to understand a Supreme Court decision one need only count the number of Justices that joined the majority opinion.
As noted above, the Supreme Court solely exists to bring clarity from confusion. If nine justices can’t come up with clarity of thought regarding what our laws mean, then they fail their essential function. As the court of last resort, the Supreme Court owes all Americans the duty to render thoughtful, clear, unambiguous opinions.
But these days, the Supreme Court finds it difficult to write cogent opinions that five justices truly support. Instead, the Court routinely passes down amalgamated decisions in which four justices join with a concurrence or two thrown in to make it nearly impossible for lower courts and lawyers to determine the actual holding of the “majority” opinion.
A recent New York Times article points out that this phenomenon is of recent vintage. In his November 18, 2010 article, Adam Liptak writes: “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.” Liptak continues:
Brown v. Board of Education, the towering 1954 decision that held segregated public schools unconstitutional, managed to do its work in fewer than 4,000 words. When the Roberts court returned to just an aspect of the issue in 2007 in Parents Involved v. Seattle, it published some 47,000 words, enough to rival a short novel. In more routine cases, too, the court has been setting records. The median length of majority opinions reached an all-time high in the last term.
Critics of the court’s work are not primarily focused on the quality of the justices’ writing, though it is often flabby and flat. Instead, they point to reasoning that fails to provide clear guidance to lower courts, sometimes seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings.
Most lay people don’t know that lawyers generally must adhere to page limits when submitting written briefs to both trial and appellate courts. Wisdom supports what’s good for the goose is good for the gander. The United States Supreme Court would benefit itself and our judicial system by imposing a page limit on its opinions. Editing improves writing and clarity—no serious writer is exempt.
Another idea that would improve the Court’s decision-making is limiting the number of concurrences justices have at their disposal in any given year. If justices were forced to choose between majority and dissenting opinions, this would probably lead to shorter opinions and greater clarity.
Most concurring opinions arise because the author agrees with the ultimate decision reached by the majority of justices, but disagrees with some aspect of the majority’s reasoning. By significantly limiting this option, a justice who would otherwise write a concurrence could instead insist that, in order for he or she to join the majority, the other justices in the majority must agree to remove certain parts of the opinion’s discussion with which the would-be-concurring justice disagrees. On balance, this would likely lead to shorter, plainer opinions.
The Court clearly needs help reaching consensus on what the law is or should be in our country. Rules requiring justices to be judicious about writing concurring opinions would force the Court’s members to more carefully choose to either join the majority or write a dissenting opinion.
Can the Roberts Court reign itself in? Of course, the answer is “yes”, but only with self-imposed discipline. As the Book of Proverbs says, “Whoever loves discipline loves knowledge….”[1]
[1] Proverbs 12:1 (NIV)