"Flat, flabby and vague"

Adam Liptak reviews the writing coming out of the Roberts court.

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.

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.

[...]

The court decides perhaps 75 cases a term these days, down from about 150 in the mid-1980s.

Yet the number of words per decision has been climbing. The Roberts court set a record last term, issuing majority opinions with a median length of 4,751 words, according to data collected by two political scientists, James F. Spriggs II of Washington University in St. Louis and Ryan C. Black of Michigan State. The lengths of decisions, including the majority opinion and all separate opinions, also set a record, at 8,265 words.

In the 1950s, the median length of decisions was around 2,000 words.

The opinions in Citizens United v. Federal Election Commission, the January decision that lifted restrictions on corporate and union spending in candidate elections, spanned 183 pages and more than 48,000 words, or about the length of “The Great Gatsby.” The decision — ninth on the list of longest majority opinions — was controversial, but the questions it addressed were not particularly complicated.

Long opinions are perilous, said Edward H. Cooper, a law professor at the University of Michigan. “The more things you say, the more chances you have to be wrong and the more chances you have to mislead the lower court,” he said.

There was a time when justices were keenly sensitive to keeping it short. Justice Lewis F. Powell Jr. wrote a memorandum to his law clerks in 1984 saying that “a frequent and justified criticism of this court is that opinions are too long” and “are overburdened with footnotes.” This can, he said, “leave lower courts and lawyers in doubt as to the law.”

These days, the writing emanating from the court can be bureaucratic and unmemorable.

Blame in part goes to the clerks who write the justices' opinions for them, but I suspect that specious reasoning -- a hallmark of this court -- leads to vague, flabby and flat opinions.

Supreme Court Update

Linda Greenhouse reviews how we are increasingly ruled by 5-4 decisions.

Almost as soon as Justice O’Connor left, for example, the court jumped into an issue she had resisted: whether school boards trying to prevent re-segregation can take race into account in student assignment plans. Despite the absence of any conflicting lower court decisions — the primary marker of a case the Supreme Court deems worthy of its attention — the court agreed to hear challenges to race-conscious plans in Louisville and Seattle. In its ruling on these cases, known collectively as Parents Involved, the court voted 5 to 4 to invalidate the plans.

The court thus began a rightward and almost entirely 5-to-4 march through its precedents that prompted Justice Stephen G. Breyer to declare from the bench on the final day of the 2006 term, “It is not often in the law that so few have so quickly changed so much.”

Read on.

Activist judges

Barack Obama has an opportunity to fill a great number of vacancies on the court. And, as is typical of Obama, he's looking to fill them with non-ideological pragmatists (much like himself). Sotomayor is a great example of that brand of judge -- and one you would expect to not be too difficult to confirm in our new warm and fuzzy post-partisan era.

Alas, one of the few things Republicans in Congress seem to be able to do is to block judicial and administrative appointments, using ideological arguments (charges of "racism" against a Latina woman from the Bronx comes to mind) against non-ideological targets. The one thing that still riles up the base of both parties is judicial appointments, and the Republican Party right now is nothing without their extreme base.

Jeffrey Toobin looks at Obama's view of the courts, most notably his realization that progressive causes can no longer rely on the courts, but must make gains legislatively, unlike during the Civil Rights era. In fact, Toobin writes, all Obama is asking of the courts, the Supreme Court especially, is that they stay away from his legislative agenda. He wants things to more or less stay the way they are -- the opposite of "activist judges," the charge conservatives usually make on Democratic judicial choices. The phrase still works the base up to a frenzy.

But it's a false charge because, on the contrary, it's the Right that is now looking to the courts for redress and it's judges from the conservative spectrum that are the activists now, similar to the 1930s when activist judges tried to derail the New Deal.

In a way, Democratic Constitutionalism goes back to the origin of the activism-vs.-restraint debate. In the late nineteenth century, a conservative majority on the Supreme Court embraced a kind of activism when it struck down several state and local measures intended to regulate the economy or to protect workers. In the nineteen-thirties, a conservative majority on the Supreme Court struck down several early New Deal measures; in these cases, the Justices ruled that Congress lacked the constitutional authority to launch such federal initiatives as the National Recovery Administration. Franklin D. Roosevelt initially responded to these defeats with his infamous court-packing plan, but in time he was able to appoint Justices who deferred to legislative judgments about how best to address the Depression. In other words, in that era liberals believed in restraint, and conservatives were the activists. (That flipped in the Warren era.) Notably, when Sotomayor was asked her favorite Supreme Court Justice, she named Benjamin Cardozo, who was a leader in fighting the conservative activism of the thirties on the Court.

“What you’ll get with Obama is basically Carolene Products—‘Leave me alone on economic issues and protect me on civil rights,’ ” Richard Epstein, the conservative legal scholar who was interim dean of the Chicago Law School when Obama taught there, said. Carolene Products was a 1938 decision, involving skim milk spiked with non-milk fat, in which the Court set up a structure that would shape constitutional law for the next several generations. The Justices gave the elected branches a more or less free hand on economic issues but exercised greater scrutiny of measures that affected minorities. “Obama has nothing much he wants from the courts,” Epstein told me. “He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That’s it.”

As David Strauss observed, “Fighting over the courts is not going to be a high-priority issue for Obama or the Democratic coalition. The Republican coalition cares a lot more about it at this point, because they want the Court to change on issues like abortion, affirmative action, school prayer, gun rights. If the courts stay right where they are, that’s fine with the Democrats. The Democratic agenda is more democratically focussed on legislation.”

In recent years, thirties-style conservative judicial activism, targeting federal legislation, has been returning to the Court. As Cass Sunstein, a former professor at Harvard Law School, writes in the “2020” collection, “Increasingly, conservatives have been drawn to ‘movement judges’—judges with no interest in judicial restraint, with a willingness to rule broadly and a demonstrated willingness to strike down the acts of Congress and state governments. Movement judges have an agenda, which, as it happens, overlaps a great deal with the extreme wing of the Republican Party.” Sunstein notes that the Rehnquist Court struck down more than three dozen federal enactments between 1995 and 2004—“a record of aggressiveness against the national legislature that is unequaled in the nation’s history.”

Over time FDR was able to reconstitute the court in a more conservative fashion. Let's hope Obama can replicate that history, but with relative youngsters in the activist majority, it's a long shot.

UPDATED to fix the usual suspects of typos

Bush v. Gore continues

The anti-democratic fallout from the preposterous decision grows even more evident, and if this doesn't tell you all you need to know about the Roberts court, then I don't know what will.

Under the Indiana law, voters who are turned away for lack of identification may cast provisional ballots, which are counted only if the voter travels to the county clerk’s office within 10 days to show the required identification or sign a sworn statement that he cannot afford to obtain such an identification. The plaintiffs have argued that this extra step and required travel create an unnecessary burden that other states with identification requirements do not impose; those states do not require voters to make a second trip in order to have a provisional counted.

Chief Justice Roberts, who grew up in Indiana, did not seem to find the burden excessive. “County seats aren’t very far for people in Indiana,” he said.

Mr. Smith replied that the county seat in Lake County was a 17-mile bus ride from the county’s urban center of Gary. “If you’re indigent, that’s a significant burden,” he said. The chief justice also seemed unimpressed by the absence of known voter impersonators. “It’s a type of fraud that, because it’s fraud, it’s hard to detect,” he said to Mr. Smith.

Dahlia Lithwick has more.

To recap: I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote. Happy byproduct? Doing away with those pesky facial challenges that liberals like to use to address massive injustices. So in the guise of doing away with hypothetical future challenges to a law, the court is poised to uphold a law that solves hypothetical future problems in voting. And for those of you wondering why the court didn't see fit to release audio for today's monumentally important argument, the answer remains, who knows? But here's one guess: The justices didn't want to be caught on tape sounding like the same 5-4 court that decided Bush v. Gore, even if nothing has changed.