Et tu, MN SCT?
In an absorbing column in last week’s New York Times, Adam Liptak argues (sorry, link broken) that today’s SCOTUS is
wordier . . .
“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.”
fuzzier . . .
“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.”
in spite of the aforementioned, arguably less unanimous . . .
“One measure of whether unanimity is authentic is the number of separate opinions in nominally unanimous decisions. This last term set a record for such opinions, known as concurrences, in which justices join or vote with the majority but also issue their own opinions to express qualms about some aspect of the majority’s approach.”
and more ghost-written . . .
“These days, the writing emanating from the court can be bureaucratic and unmemorable.
‘They just don’t make great movie lines the way they used to,’ said Fred R. Shapiro, an associate librarian at Yale Law School and the editor of The Oxford Dictionary of American Legal Quotations. ‘They also don’t make great Supreme Court passages the way they used to.’
With the declining docket, justices have more time to hone their writing. But the available evidence suggests they rely on their clerks to produce first drafts, which the justices then edit.
‘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.’ “
than its predecessors. The shoe appears to fit the present-day Minnesota Supreme Court as well — we can debate about how closely — where verbosity is growing apace, but clarity and elegance seem to be on the wane.
