Supreme Court: The biggest flaw in the opinions this term.

Supreme Court 2013: The Year in Review

What’s the Biggest Flaw in the Supreme Court’s Opinions This Year?
An email conversation about the news of the day.
June 21 2013 12:17 PM

Supreme Court 2013: The Year in Review


What’s the biggest flaw in the opinions this term?

United State Supreme Court Reports
United State Supreme Court Reports

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Eric’s piece about the relative coherence of the liberal and conservative coalitions on the Supreme Court is very interesting, but I am inclined to question his statement that one “decidedly unfashionable” explanation for this “is that the conservatives (or some of them) genuinely care about, and disagree over, important matters of law.” I’m not sure that such an explanation is “unfashionable”; I imagine that most judges, lawyers, and law professors would say (though some with tongue in cheek) that Supreme Court justices “genuinely care about, and disagree over, matters of law,” though this may depend on what a matter of law is. My own view is that any statement in a judicial opinion is a matter of law. (That is the legal realist in me.)

An alternative explanation for the phenomenon Eric notes is that the liberal coalition is smaller and weaker than the conservative one, and that this pushes the liberals to cohere, lest they seem ineffectual. For there are four conservatives, one conservative-leaning moderate (Kennedy), one liberal-leaning moderate (Breyer), and the three liberals. So in a sense the liberals are outnumbered 6 to 3, and had therefore better hang together.

I hadn’t actually read many Supreme Court decisions this term as they came down, so in preparation for this stint of commenting for Slate I sat down and read, in a short period, all the cases decided through May 20. Maybe “read” is too strong a word for what I did because I didn’t read every word in all or even most of the opinions. But I read enough to form two impressions. The first is that they are on average quite well written in the sense that each sentence is clear, though the opinion as a whole may not be. Second, they are inordinately long. Three years ago Adam Liptak wrote an excellent article in the New York Times about the length of Supreme Court opinions. He found that the length of the median majority opinion in the previous term was 4,751 words, and of the entire decision, including concurring and dissenting opinions, 8,265 words. Both were record lengths. In the 1950s the median length of majority opinions had been only about 2,000 words.


I don’t know the current figures. But I have the strong impression reading this term’s opinions that most of them are too long—unnecessarily long, misleadingly long, and tedious. The appearance created is of great thoroughness and scholarship. The opinions bristle with citations to cases and secondary materials, and detailed rebuttals to dissents, in the majority opinions, and to the majority, in dissenting opinions. Yet I think that most of what one reads in the opinions is padding, much of it no doubt supplied by the justices’ very able law clerks, but of course at the behest of the justices; they want the padding.

Most of the cases the Supreme Court agrees to decide are tossups, in the sense that they cannot be decided by conventional legal reasoning, with its heavy reliance on constitutional and statutory language and previous decisions. If they could be decided by those essentially semantic methods, they would be resolved uncontroversially at the level of a state supreme court or federal court of appeals and never get reviewed by the Supreme Court. I think that inevitably—and this is not in the least a criticism, not only because inevitability cannot be criticized but also because, as I said, I consider myself a legal realist—the judicial votes of the justices of the Supreme Court are based on a compound of ideology, intuition, practical concerns (such as administrability, predictability, caseload effects, and strategy—coalition building, for example, as I suggested earlier), temperament, emotion, personal and professional experiences, and knowledge gleaned outside the courtroom (knowledge of prison conditions, environmental hazards, specific industries, and so on). Great justices and judges, most famously Oliver Wendell Holmes, have been frank in their opinions about these sources of their judicial votes. (Think of opinions like Lochner, Abrams, Buck v. Bell, and Olmstead.) Modern justices and judges tend to be more circumspect, yet the true springs of decision peep through the underbrush of the modern opinion. They are what the opinion should be read for. The padding can be ignored.

Richard A. Posner is a judge, U.S. Court of Appeals for the 7th Circuit, and a senior lecturer at the University of Chicago Law School.

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