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Mazzone on the Supreme Court's Workload:
Guestblogging at Concurring Opinions, Jason Mazzone has a post criticizing the workload of the Supreme Court that echoes what I think is a fairly common complaint: the Supreme Court decides too few cases, and the opinions it does issue are too complicated.
  Last term, the Supreme Court issued opinions in just 74 cases. That's pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn't; many issues that, once decided, will not reach the Court again for decades, if ever.
  A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It's not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.
  Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices. As a result, most opinions are inaccessible to non-specialists. It is a rare delight these days to get an opinion that crisply and simply sets out the decision of a unanimous Court. Were it not for people like Linda Greenhouse of The New York Times, skillfully decoding the justices' language, the general public would have no idea what the Court was doing.
  I look at the Supreme Court's workload somewhat differently. First, I think it's probably wrong to think that more Supreme Court decisions means more settled law. If anything, I think the opposite is probably true: lots of new Supreme Court cases in a field probably tends to unsettle the law rather than settle it.

  Second, I'm not sure how much we should value the aesthetic "delight" of reading "an opinion that crisply and simply sets out the decision of a unanimous Court." I assume Mazzone is referring to the reasoning of Court opinions, rather than their bottom-line holdings. If so, it seems worth noting that very few people read Supreme Court opinions, and extremely few for their reasoning alone, and I don't know how many people in that group place a particular value on crispness and simplicity. In my experience, most readers value whether reasoning is persuasive, and different people find different kinds of opinions persuasive.

  Finally, it's hard to assess whether the Court should take more cases in the abstract — that is, without considering what kinds of cases the Court should grant. Should the Court hear lots of patent cases? Revisit the Warren Court's criminal procedure revolution? Decide to hear every preemption case that comes over the transom? Should the Court really start rethinking its approach to ERISA? Should the Justices start taking the Third Amendment seriously? It's hard to know whether the Court should start granting more cases without a relatively specific answer to what kinds of cases the Court should grant.

  UPDATE: Michael Cernovich offers some additional thoughts.
Fishbane:
The crux of the complaint seems to be a process oriented one - both quantity and quality are dropping off.

As one of the (probably very few) laymen who does read opinions, I do find recent ones rather obtuse in comparison with earier ones.

As to the question of granting I tend to agree. The answer depends heavily on what one wishes to reach, and the opportunities for doing so.
11.28.2005 8:19pm
Daniel San (mail):
An Appeallate Court, including the Supreme Court, must give guidance to lower courts. When I read a Supreme Court case, I need to be able to understand the bottom line holding. If there is no majority opinion, or if the bottom line holding is supported by vague, multi-factor balancing tests, I have a hard time advising my clients, trial judges have a hard time deciding cases, and no one knows what the law is.

As a matter of practical theory, it is certainly important that cases be rightly decided and well reasoned. But it is just as important that cases include a clear statement of the relevant law.
11.28.2005 8:27pm
Steve:
Third Amendment. I am definitely in favor of more Third Amendment.
11.28.2005 8:32pm
AF:
Echoing Daniel San, I'd emphasize that, totally independent of aesthetics, there is great value to crisp and simple opinions because they tell you what the law is. For practicing lawyers and judges, it doesn't really matter whether the Supreme Court's opinions are persuasive. It matters what they stand for. Convoluted opinions are mostly ignored, except maybe by law professors and Supreme Court litigators.
11.28.2005 8:44pm
OrinKerr:
Daniel San, AF,

I agree with you, but I understand Mazzone to be making a slightly different point: I gather he is referring to whether the reasoning of the opinions are simple and crisp, not whether the court's ultimate holding is crisp and simple.

Note that the two need not be related: a court can have a complex and meandering opinion that leads to a crisp and clean rule, or can have a crisp and clean analysis that leads to an uncertain rule.
11.28.2005 8:54pm
Simon (391563) (mail) (www):
Orin-

I think they are related more often than not, especially given the uncertainty you mentioned earlier that lower courts often face in the aftermath of a SCOTUS investigation. The best way of navigating those thickets is looking at the reasoning -- not just the rule.

And if we're looking for areas ripe for greater SCOTUS activity, I nominate § 1983 in general and qualified immunity in particular. It drives me nuts that the effective substance of a person's constitutional rights depends in large part on what part of the country he or she lives in.
11.28.2005 9:23pm
Nunzio (mail):
Many of the Supreme Court decisions are pretty short and straightforward (and unanimous or virtually unanimous) and resolve a basic issue, e.g. the recent FLSA cases.

But I take it Mazzone is talking more about the cases that make headlines. Personally, I think the 11th Amendment cases from 1989 to the present are a pretty egregious example of the Court failing to do its job.
11.28.2005 9:38pm
JohnO (mail):
I agree with Steve. We'd just love to be able to get rid of that soldier holed up in our guest bedroom.
11.28.2005 9:43pm
The Original TS (mail):
First of all, I blame word processing and the internet. There is a dramatic change in all appellate opinions after the widespread adoption of word processing. (There are, of course, obvious reasons for this.) Some of these changes were good. Others, not so good. Appellate courts have an increasing tendency to write law review articles rather than opinions.

I also blame the internet. Once upon a time, appellate courts were largely stuck with the case law cited by the parties in the briefing. Nowadays, law clerks have access to the law in all fifty states and 13 federal circuits plus if they're feeling frisky, English common law and the EU's acquis communautaire. Discussing and analyzing some of this stuff is often intellectually interesting but of minimal practical interest.

I think these really long appellate opinions (let alone Supreme Court opinions with multiple concurrences) often create more confusion than they eliminate. Bright line rules, while nice, can make bad law. But sometimes these opinions are so complex that it's impossible to figure out any sort of rule of law at all -- and that's worse.

Personally, I have no problem with the Supreme Court taking fewer and fewer cases. When you think about it, it should be that way. The Supreme Court is supposed to be tackling fundamental issues and there should be less and less of those as the law gets more and more settled. Taking on too many cases can be micromanaging. I have a big problem, for example, with jurisdictions where the state supreme court automatically publishes all of its death penalty cases. The court can't pick its issues but is bound to rule on any issue raised by the defense, no matter how tenuous. This can make for some completely binding yet bad law on issues and facts that the state supreme court would never have voluntarily considered.
11.28.2005 10:04pm
Mary Katherine Day-Petrano (mail):
If clean and simple is the standard, why do Courts need to do any more than Florida's intermediate State appellate courts that issue per curiam decisions (PCAs) -- either one wins or loses. Clean and simple, perfectly clear, but one is left to guess why.

A classic example is a case docketed in the Supreme Court right now, No. 05-7287, which is the State part of parallel State and Federal litigation. In the Federal litigation, received by the Supreme Court on Nov. 21st, but inexplicably not yet docketed, the Florida Court system's own lawyers admitted a communication disabled person who could not manually type by keyboarding for even an hour or less would not be able to prepare motions, applications, complaints, pleadings, and correspondence -- yet in the docketed case, No. 05-7287, the same Florida Court system respondents have simultaneously claimed there is no disability, no reasonable accomodations needed, Florida courts do not have to reasonably accommodate, and therefore there is no discrimination. Why would the same parties in two different cases put forth diametrically opposite positions? Who knows? The Florida State courts attempt to issue PCAs in about 70% of their cases, conveying only whether the person wins or loses. It is a mystery.

So if the failure to reasonably accommodate a person who a State's Courts know clearly cannot effectively participate in the State's Court system, can cause a clear and simple court decision of who wins and loses without having to explain why, then it is easy to violate serious well-established Constitutional rights -- like Speedy trial, Miranda, right to counsel, right to call and cross-examine witnesses, the right to a meaningful appeal. How can a person so limited in writing pleadings without an assistive technology device (a communication machine analogous to the abilities a wheelchair enables for its user) overcome even at the Supreme Court the initial barriers of getting a foot in the door to request accommodations necessary to meaningfully participate? Or, does a silent minority not have any access to America's courts? If this is the standard, why do we need a Constitution?

In Florida, to exacerbate matters, whether it is bar admission, deprivation of a driver's license, property rights, a criminal or civil case, reasonable accommodations decisions are handed over to human resource managers, clerks, and marshals, people who are not lawyers or judges and who are not required to utilize expert medical evidence or the latest scientific technological information to make decisions about disabilities and the need for the reasonable accomodations they are not trained or equipped to understand.

These decisions Florida admits are administrative, and not in a judicial capacity, there is no right to an evidentiary hearing or appellate review -- so it is incredible that the Florida Courts system in the parallel Federal case that is not yet docketed would have represented to the Eleventh CIrcuit that judicial and quasi-judicial immunity shielded them from liability and that Garrett rather than Tennessee v. Lane would apply.

In sum, while I would be one to encourage the Supreme Court to increase the number of cases it takes, as this classic example amply demonstrates, I remain a firm believer in Supreme Court opinions that reason and explain why a certain result should be reached. If the entire judiciary were a per curiam decision stating only the result without the reasons, there would be no effective check or balance to safeguard the rights of a powerless minority from the tyranny of the majority.

With the trend toward aborting fetuses that genetically test for developmental disabilities, and cutting off those with these disabilities who are already born from all opportunities available to others, per curiam decisions without reasons are a very real fear among those of us with these disabilities. And if anyone thinks people with developmental disabilities should be written off, well, that would include some of our greatest and most brilliant thinkers, like Thomas Jefferson (autism) and Albert Einstein (autism or aspergers).
11.28.2005 10:37pm
Charles Chapman (mail) (www):
From the article:
My advice for Chief Justice John G. Roberts: double the number of cases the Court decides (it decided 123 the term Roberts clerked for Rehnquist), halve the length of opinions, make unanimity the goal, and discourage separate concurrences.
None of these things are within Roberts control. I guess you could say it is a matter of "leadership," but Roberts will only be first among equals.

However, I agree the last three factors are crucially important. The plurality, "concurring in part, dissenting in part," "need to count justices voting for each sub-part" opinions drive me nuts. Unfortunately, I think it comes down to the justices excercising individual self-discipline, and placing the institututinional interests of the Court (and of the judicial system as a whole) in front of their need to express themselves in a particular case.

Finally, I think O'Conner leaving the Court may help. Narrowly, highly factual decisions leave much undecided, and only invite more lititation.
11.28.2005 10:43pm
Justin (mail):
Food for thought. The average Holmes opinion was 4 pages. Frankfurter would make his clerks cut any opinion more than 10 pages long in half at least once before he would even read the darn thing.
11.28.2005 10:43pm
Justin (mail):
Sorry, the justice I am thinking of is not Frankfurter...it may have been someone on the DC Circuit.
11.28.2005 10:44pm
Robert Schwartz (mail):
Judge Posner wrote a long article on this subject in the Harvard Law review Supreme Court issue for this fall.

I don't think we are getting our moneys worth out of these justices. Partly, we are reaping the reward for letting the court become an old folks home.
11.28.2005 10:57pm
frankcross (mail):
This is an extremely light workload. There are lots of circuit conflicts that the Court doesn't take. I don't know what the excuse is for that.

And my research finds that one of the most significant features of the reduced workload is that the court is taking a lot fewer cases where they uphold the constitutionality of a federal or state statute. That seems a little strange, but certainly leaves the law more unsettled.
11.28.2005 11:03pm
Conrad (mail):
"[V]ery few people read Supreme Court opinions, and extremely few for their reasoning alone, and I don't know how many people in that group place a particular value on crispness and simplicity."


Spoken like a true academic.

If you know few such people I'd suggest that you try to get out more. Plenty of us mere practioners (not to mention lower court judges and their law clerks) read Supreme Court decisions hoping, indeed praying, for crispness and simplicity. Although we'd settle for occassional episodes of coherence.
11.29.2005 3:35am
Visitor Again:
Richard Posner's Supreme Court foreword in the November isue of the Harvard Law Review, titled A Political Court?, rips apart Henry Hart's famous 1959 Supreme Court foreword, The Time Chart of the Justices. He makes a rather convincing case that Hart (my old federal courts prof) didn't know what he was talking about when he claimed the main problem with the Court was that the justices had insufficient time to do their work.

The great decline in the number of Supreme Court opinions coincided with the Court's swing to the right, particularly after Rehnquist became Chief Justice. An argument could be made that the decline is due to the fact that the Court is indeed political. The lower courts swung to the right, too, and the Supreme Court is perfectly happy to let them sort things out, with the exception of the Ninth Circuit, which has its cases reviewed at the same level as in the old days. The Reagan Administration made a huge number of appointments to the federal bench, and state courts became much more conservative as well. Furthermore, nonintervention in state cases serves conservative principles.

I have a cynical view of Supreme Court opinions. Their complexity, even when they purport to settle things, almost always makes more work for lawyers.

What I dislike most about the Curt's jurisprudence of the past three decades and more is the multioke Constitutions (really, Bill of Rights) it has put in place. There is the Constitution available to those on direct review who are fortunate enough to gain a hearing before the Supreme Court. There is the Constitution available to those whose cases came too early, who did not gain Supreme Court review and who thus seek retroactive application. There is the ever-diminishing and perhaps soon-to-be-nonexistent Constitution available to habeas corpus petitioners. There is the Constitution available to civil rights and liberties plaintiffs, vastly diminished through various immunity doctrines.

These doctrines of multiple Constitutions seem to rest on the idea that enforcement of the Constitution is punishment or a penalty or a bad thing to be minimized. They give the lie to the proposition that the Constitution is sitting out there as a body of law waiting to be divined. And yet most of their proponents don't even acknowledge that it is a living Constitution they are expounding.
11.29.2005 4:57am
Brett Bellmore (mail):

Should the Justices start taking the Third Amendment seriously?


Just a thought, but it's been, what, seventy years now, since they took a Second amendment case? And it's not like the 3d amendment, people are actively bringing cases to them on a regular basis up through the circuits, and they're rejecting every one without comment.

If they're going to strike it down, they should do so, instead of delegating the death of a thousand cuts to the lower courts to carry out. Ducking 10% of the Bill of rights this way is nothing but cowardice, at best.
11.29.2005 7:14am
CJ:
Agreed, more Second Amendment.
If they can all read the plain English of the BoR, that is.
11.29.2005 8:58am
Columbienne:
Come on, give them a break -- they just decided to review 100 years of patent law in eBay v. MercExchange.
11.29.2005 9:52am
Richard Bellamy (mail):
Finally, I think O'Conner leaving the Court may help. Narrowly, highly factual decisions leave much undecided, and only invite more lititation.

This false perception is based on the notion that centrism is a philosophy, rather than just an artifact of having four justices who are more liberal than you, and four who are more conservative.

There will always be an O'Connor, even if the Supreme Court is made up of Scalia and his eight genetic clones. They will just be splitting hairs in a fact-intensive way between executing five year olds and executing six year old.
11.29.2005 11:11am
Penta:
As an utter layman:

The problem thus far is not how many cases the Supreme Court rules on.

It's the sheer *verbosity* of the rulings it gives.

I think one of the barriers to a better common understanding of the Supreme Court (and the judiciary as a whole) is that conciseness is, to lawyers at least, seemingly a lost art.

It is not necessary, I think, to decide a criminal appeal with a 130-page opinion; If you cannot set down the whole thing in 40 pages at most, you're hopeless.

Similarly, the bibliographic endnote (not footnotes!) would be a welcome thing to see in opinions; Focus on writing. Keep the cites, but keep them out of the way. The lawyers who need em should be able to find em easily enough.

Generally, I would argue that the legal profession as a whole needs to re-learn the value of CONCISE writing, so that short law review articles are actually short (37 pages is NOT SHORT!), briefs are BRIEF, and the printed decisions of the Supreme Court for ONE TERM do not make the reader risk a hernia.
11.29.2005 12:58pm
MikeCF (mail) (www):
Brett and CJ: When you say that the Court should take more Second Amendment cases, why do you want them to take it? Do you have a pure scholarly interest in this area of the law; and so you'd like to see more cases - whether or not they decide a specific question in a specific way?

If, like me, you have an individual-rights view of the Second Amendment, you might not want the Supreme Court to review any such cases, since the outcome is too uncertain. Are there five (or at least four) reliable pro-Second Amendment votes yet? Anyhow, if you really care about such issues, you can't merely want the Court to review a Second Amendment case in the abstract.

E.g., a couple of years ago someone petitioned for cert., seeking review of a ruling Ninth Circuit ruling that upheld California's assault weapons ban. Even staunch gun-rights advocates *did not* want the Court to take more Second Amendment cases - at least that term. Given that the case dealt with "assault rifles," stategists were afraid that even a sympathetic justice would get cold feet.

This Term cert. is pending in an interesting gun-rights case - Bach v. Pataki - that asks whether the Fourteenth Amendment incorporated, and thus applied, the Second Amendment to the states. The plaintiff in this case is an ex-Navy SEAL and current Navy lawyer. Good plaintiff, and good issue. But will the more conservative justices be sympathetic to the incorporation issue? Incorporation is different from whether the Second Amendment creates an individual right. Some view incorporation as a way for "activist" judges to impose all of these burdens on states. And given conservative criticism of the Warren Court's rampant incorporation, will conservatives vote to incorporate a "good" right?

So, as you can see, it doesn't make much sense to want the Court to review more cases in the abstract. (Again, unless you don't care how the Court comes out.) There are tons of other factors at issue: the composition of the court; the facts of the underlying case to be reviewed; the legal issue involved.
11.29.2005 1:00pm
BobVDV (mail):
The classic recent example of too many separate opinions came in last term's Ten Commandment cases. I believe there were 10 different opinions in two cases, leading Chief Justice Rehnquist to say “I didn’t know we had that many people on our court.”

I think there was at least one other case where O'Connor announced the opinion for the majority, then wrote a separate opinion where she concurred with herself.

The practical result is more than just amusement for court watchers. Lower courts are left puzzled over what standards to apply, and SCOTUS will be faced with a new round of circuit splits.

Count my vote in favor of shorter opinions with fewer concurrences and partial concurrences.
11.29.2005 1:08pm
David M. Nieporent (www):
This false perception is based on the notion that centrism is a philosophy, rather than just an artifact of having four justices who are more liberal than you, and four who are more conservative.

There will always be an O'Connor, even if the Supreme Court is made up of Scalia and his eight genetic clones. They will just be splitting hairs in a fact-intensive way between executing five year olds and executing six year old.
This analysis assumes that the problem with O'Connor's approach is that it is "centrist," rather than that it is muddled. Most justices (7) had no problem coming down on the same side in each of the two Affirmative Action cases two terms ago; most justices (8) had no problem coming down on the same side in each of the two Ten Commandments cases last term.

Why? Because they were laying down legal principles, not engaging in factual hairsplitting.

But two justices managed to find differences between the Gratz and Grutter cases such that they could rule in against affirmative action in one and in favor of it in the other. And one justice managed to find differences between Van Orden and McCreary such that he could rule in favor of the display of the ten commandments in one and against it in the other. (As it happens, in the two examples I cite, Breyer was worse than O'Connor; she was consistent in the ten commandments cases, while he changed sides. Breyer and O'Connor both flip-flopped in the race preference cases.)

That's not to say that O'Connor/Breyer were "wrong" in some absolutist sense. The point is that their approach led them to decide that certain differences were significant when most justices thought otherwise.

Nine Scalias would not do that.
11.29.2005 3:57pm
Richard Bellamy (mail):
Yes, but in a 9-Scalia/Thomas court, Gratz/Grutter type cases would be easily dealt with in a 9-0 majority, and would not come before the court.

Instead, the court would be deciding which of the following federal laws implicated interstate commerce in a world of beefed up a Commerce Clause: guns in a school zone, medical marijuana, assisted suicide, partial birth abortion (after Roe v.Wade is reversed 9-0), etc. A Scalia would find himself drawing a line between two cases that are nearly identical, because you've got to draw a line somewhere, or else Commerce means Everything or Nothing.

Then, they would decide whether a Regulation was a Taking if it removed 99% of its value, and then 95%. And a line would be drawn somewhere by some Scalia or other that would label that Scalia the next O'Connor.
11.29.2005 4:28pm