“Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case, we have no choice,” he wrote. “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”
–Associate Justice Antonin Scalia in City of Ontario v. Quon
Adam Liptak penned a lengthy piece in the
New York Times decrying our beloved Supremes. There are fewer decisions. The decisions are far longer. The decisions fail to provide guidance. The Supreme Court fails to fulfill its function.
Nothing new here.
The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.
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.
Among the things some law bloggers do is parse those decisions that pertain to our area of interest. We spend more time reading, and considering, Supreme Court decisions than we were inclined to do before, pouring over the phrases and trying very hard to understand what the decisions mean. It’s usually pretty easy to figure out which side won. It’s not so easy to figure out why, or what it means for the next case.
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.
Liptak offers some examples:
A decision in May striking down life-without-parole sentences for juvenile offenders who did not kill anyone said only that states must provide “some meaningful opportunity to obtain release.” In dissent, Justice Clarence Thomas wondered what that could possibly mean.
A decision last year that required a judge to step aside from a case involving a coal executive who had spent millions to help elect the judge left many questions unanswered about when recusal is required. How many questions? Chief Justice Roberts, dissenting, listed 40.
In a pair of civil procedure decisions in 2007 and 2009 that have been cited many thousands of times, the court gave trial judges more authority to throw out cases early based on, in the words of the later decision, their “experience and common sense.”
Of course, it’s not easy to put into words a rule that will adequately and appropriately cover a broad array of circumstances, and has the potential for life-changing impact on thousands, perhaps millions of people. But that’s why they pay them the big bucks. That’s the job, and there isn’t a person on the Supreme Court who was unaware of the heavy burden when they accepted the appointment. Tougher than you though? Bummer, get to work.
Liptak offers one basis for the problem stemming from the fact that opinions are drafted by children.
“Although today’s Supreme Court opinions are no more poorly written on average than opinions from the era in which the justices wrote their own opinions, there is nonetheless a loss when opinions are ghostwritten,” Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote in The New Republic in 2006. “Most of the law clerks are very bright, but they are inexperienced; and judges fool themselves when they think that by careful editing they can make a judicial opinion their own.”
Delegating actual drafting to law clerks who are typically just two years out of law school, critics say, can be an abdication of judicial authority or at least an invitation to uneven and ambiguous prose.
This is a bug, not a feature. Particularly given that the Supreme have reduced their caseload from about 150 in the 1980s to about half now, it doesn’t seem unbearably onerous for the justices to get more “hands-on” in the writing of their decisions.
More problematic is that inexperienced clerks, who perceive themselves to be the Crème de la Crème of the profession, the best and the brightest, are incapable of perceiving the uses to which the opinions they draft are put. These are trench issues, for both judges and lawyers, who are constrained to apply rules to the lives of real people. These child-clerks have never been responsible for real people in their lives, and thus can’t begin to fathom how their playing junior God can screw-up lives. And they will never do so, going on to be scholars and perhaps even become a justice in their own right. Yippee.
But this isn’t an excuse. We appoint justices, not law clerks. That justices are derelict in their duty is their own responsibility, not the children on whom they lean. Once the first draft is produced, it provides the outline upon which the final product relies. If it doesn’t lead to a clear, reasoned rule, then it merely adds to the confusion. And confused courts tend to be very bad for criminal defendants.
Liptak goes on to challenge the vagaries of “unanimous” decisions, consisting of a majority and seven concurrences (Thomas joined Scalia’s). He notes, without surprise, that dissents are clearer than concurrences. But the upshot is that clear dissents do little to tell us what the majority really means. And that remains the problem.
My suspicion is that the root cause of this institutional failure is the lack of trench lawyers on the court. As politicians strive to find the “best and the brightest” who happen to share something akin to their political views, have no strikes in their past and are confirmable, they avoid lawyers who actually worked for a living. And don’t tell me that a few years as a prosecutor counts. Talk to me about someone who actually held a person’s life in their hands, and felt the sting of a judge who just didn’t give a damn.
These are lawyers who make decisions because they have no option not to. They either object or the objection is lost. They make the argument or its goes unheard. There’s no such thing as litigation modesty, despite arguments for the propriety of judicial modesty. We either do it, and do it now, or kiss it good-bye.
It seems almost inconceivable that the Supreme don’t realize, when the issue a decision, that they have left critical questions unanswered or made a rule so vague that it’s meaningless. These aren’t stupid people. Rather, they fear making the wrong decision, or a decision that is right for the case before them but applies poorly to the many others that happen in real time. But fear of error or unduly expansive decision-making is the cause of worse problems than the possibility of an error itself.
In February, for instance, the court considered whether police officers could resume questioning a man who had invoked his Miranda rights more than two years before.
By a 9-to-0 vote, the justices said yes. Justice Scalia, writing for seven justices, added that the court should do more than merely decide the question before it.
“Law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful,” he wrote.
How long, then, must the police wait after they have released a suspect? Two weeks, Justice Scalia said, sounded about right.
The rule was incredibly stupid, pulled out of thin air and dead wrong. But at least we knew what the rule was. Anything else is worthless to all involved.
That’s largely the point of this book, that by adopting the ways of typographers, without having to reinvent the typography wheel with every point made, we can make our work appear more professional, poised and persuasive. To the extent we suffer the ways of old, they were the product of typewriter limitations, not good choices. Somebody knew it back then, and tried to do the best they could. Today, we no longer suffer the same limitations, which means that we have no excuse.