by Matt Barr

Toward more and better opinions

I allude to it below: Gonzalez v. Oregon may represent hopes dashed that Chief Justice Roberts would start to do something about the length and incomprehensibility of opinions on his Court. Chief Justice Rehnquist reduced the Court's docket and clipped the amount of interaction Justices were required to have with one another. By reversing both these things Roberts could give us more and better settled law, and fewer dissertations to slog through.

An article by Eric M. Freedman in the Alabama Law Review has this hilarious account of what the Court in 1953 called its Brown v. Allen habeas corpus case:

When the Justices released Brown, "[m]ore than 40,000 words and six separate documents were required to set forth their concurrences, dissents and separate opinions." This kaleidoscopic production received withering reviews. A commentator in the journal of the Philadelphia Bar Association mourned that "that peerless wit, Mr. Dooley (Finley Peter Dunne)" was no longer on the scene to do full justice to the case and described "the number and length of opinions filed, the uncertainty as to the result, and the confusing alignment of the Justices" as follows: Mr. Justice Reed announced the judgment of the Court. He also handed down a 15,000-word opinion covering two--or is it three?--principal points of law. On the first point (namely, what consideration should lower courts give to a denial of certiorari by the Supreme Court), his opinion states that it is not the opinion of the Court. As far as anyone outside the Court can tell, one of Mr. Justice Frankfurter's two opinions in the case reflects the Court judgment and reasoning on this first point (although there is a vocal, even if not too clearly identified, minority).

On the other points, Mr. Justice Reed wrote--or at least so it seems--for himself, the Chief Justice, and Justice Minton, without reservation (excepting of course those stated or implied in the opinion itself). Mr. Justice Reed's judgment suited Mr. Justice Jackson, but the Reed opinion did not, so there is a Jackson opinion concurring in the judgment only. Mr. Justice Burton and Mr. Justice Clark joined in the judgment of the Court, but not in the Reed opinion in its entirety--in fact, they seem to adhere to one of Mr. Justice Frankfurter's opinions, at least on the first point of law. They did not, however, join Mr. Justice Frankfurter's second opinion (apparently dissenting on the merits), but that opinion was joined by Mr. Justice Black and Mr. Justice Douglas.

Of course, Mr. Justice Black also wrote a dissent on the merits, and Mr. Justice Douglas joined in the Black opinion too. This accounts for all the writing in the case, except that one of Mr. Justice Frankfurter's opinions has a voluminous Appendix, which seems to speak only for him.

Some fifty years later, this wouldn't be considered the aberration it should be. Gonzalez v. Oregon, a case requiring the Court to interpret a statute, was comprised of an 8,127 word majority opinion and a 7,648 word principal dissent (in which the Chief joined). Statutory interpretation -- you know, the kind of thing Congress can now fix if it wants. I would prefer the Court err on the side of being comprehensive when it's telling us what the Constitution suddenly requires, but as Gertrude said, "more matter and less art" when it comes to yes or no questions Congress can make irrelevant tomorrow.

What seems to be happening is that Justices are writing up opinions then circulating them around to see who they can get on board. It's not difficult to imagine a Justice agreeing to sign on, provided something is added to the effect of _____. After four or five iterations, you've got a Frankenstein of an opinion that doesn't make anything clearer and frankly makes the Court seem more cloistered and inaccessible.

Jason Mazzone suggested a couple months ago that the Justices spend more time dining together:

[T]he 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.

Emphasis added (and this is a fine idea). There are a number of forces at work making the Court's opinions more impenetrable. One is certainly that as an institution the Court, for all its collegiality, has become a place where five votes wins. Effort used to be expended to ensure that an opinion was the opinion of the Court, and if there was something defective about it in that regard, it was modified. Only when a Justice or two were simply intractable was a non-unanimous opinion published.

Now Justices seem to glom on to one or another Justice's draft, requesting additions or changes in exchange for their vote. This kind of horse trading is the only reasonable explantion for a 7,500+ word dissent that looks like an abortive majority opinion in Gonzalez v. Oregon. It's also the only explanation to there amusingly being six opinions making up Bush v. Gore, published four days after the Florida Supreme Court ruling it settled the appeal of.

Other reasons for the tedium include more clerks, better word processing software, and, ironically, the fact that more people are reading Supreme Court opinions than ever did before. (Breath mint, Justice Kennedy?) The new Chief can't really do anything about these things, but can make his Court meet together more often and more productively to agree on what's important and what isn't, and how best to express the judgment of the Court. He can also make everyone work harder and with more brevity by deciding more cases -- and can himself refuse to join overly long, meandering, unuseful opinions like Scalia's in Gonzalez v. Oregon.

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