The Supreme Court and the People: Communicating Decisions to the Public

Although the individual Justices of the Supreme Court frequently speak to the public, the Court as an entity holds fast to the purportedly ancient principle that courts should speak only through their official written opinions—the meaning of which is for others to figure out. Over the years, the Court’s decisions have become more complex, prolix, and fractured, making it difficult and time-consuming for anyone outside the professional elites to determine what the Court has held. Even journalists, who attempt to explain the Court’s decisions to the public, struggle to make sense of the Justices’ opinions under the pressures generated by new demands for instant news. As a result, the Court’s interpretations of the Constitution remain shrouded in mystery and beyond the ken of many. The Court’s approach is hard to square with its own teaching on the importance of an informed public to a democratic government, let alone with the Court’s central obligation to expound the Constitution in a way that is intelligible to the people. We therefore argue that the Court’s communication practices are both unjustified and self-defeating. The underlying principle—that courts speak only through their written opinions—has never been categorically true. The early Court did not deliver written opinions at all, and Justices from the time of John Marshall have offered out-of-court defenses of their decisions. Some Justices have indeed recognized that the Court suffers when it fails to help the media understand and disseminate its decisions. But the Court has insistently maintained its aloofness. It has shown little concern for the changing needs of the press, and it has steadfastly rejected any suggestion that it should make its work more accessible to the people. Meanwhile, the constitutional courts of other countries—including Canada, Germany, and Israel—have risen to the challenge. These courts have adopted innovative procedures, such as press “lock-ups” and plain language opinion summaries, to ensure that their decisions are more intelligible, and they have not suffered the loss of dignity or respect that the Supreme Court apparently fears. These trends reflect a growing understanding that the legitimacy of constitutional courts depends on their ability to make their decisions comprehensible to other participants in the political process—the executive, the legislature, and especially the people. Our Supreme Court is not immune from the realities to which other constitutional courts have responded, and, like them, it must find a way to make its decisions more easily reported and better understood

Procedural Categories

Procedural law is organized around the assumption that different categories of rules apply to different categories of cases. We internalize this idea at an early stage of our legal education and learn to treat the categories of civil, criminal, and administrative procedure as natural and sacrosanct. Unwittingly we imprison our theorizing, our rulemaking, and our practice within their strict bounds. Yet the premise is fundamentally false. The system of procedure is far from static, and the categories are not fixed or unchanging. The various sets of rules reflect nothing more than our latent--but vitally important-- beliefs about the proper way to channel disputes into court. Illuminating the evolving nature of these categories, this Article sets out to identify for the first time the ways in which we shape the forms of procedure through the choices we make. The interaction of two competing principles have long pulled procedure in opposite directions. One principle, transsubstantivity, pushes the design of rules toward a generic and content-indifferent form. The other principle, substance-specificity, points toward the need to tailor procedural rules to a specific type of litigation. The tension between these fundamental organizing principles reflects a tacit understanding that it is neither possible to adopt a general procedure for all types of cases nor adjust the system to address every nuance. It is their synthesis that brings us to distinct sets of rules that apply uniformly within but not beyond a certain class of proceedings. Given the changing attitudes about the correct balance between the two principles, over time new procedural categories are created while others are dissolved. These insights embolden us to rethink the present-day categories and determine whether they are in need of revision. Ultimately, this Article creates a common ground for discussion among proceduralists across separate fields and takes us a step forward toward a unified theory of procedure

The Supreme Court and the People: Communicating Decisions to the Public

Although the individual Justices of the Supreme Court frequently speak to the public, the Court as an entity holds fast to the purportedly ancient principle that courts should speak only through their official written opinions—the meaning of which is for others to figure out. Over the years, the Court’s decisions have become more complex, prolix, and fractured, making it difficult and time-consuming for anyone outside the professional elites to determine what the Court has held. Even journalists, who attempt to explain the Court’s decisions to the public, struggle to make sense of the Justices’ opinions under the pressures generated by new demands for instant news. As a result, the Court’s interpretations of the Constitution remain shrouded in mystery and beyond the ken of many. The Court’s approach is hard to square with its own teaching on the importance of an informed public to a democratic government, let alone with the Court’s central obligation to expound the Constitution in a way that is intelligible to the people. We therefore argue that the Court’s communication practices are both unjustified and self-defeating. The underlying principle—that courts speak only through their written opinions—has never been categorically true. The early Court did not deliver written opinions at all, and Justices from the time of John Marshall have offered out-of-court defenses of their decisions. Some Justices have indeed recognized that the Court suffers when it fails to help the media understand and disseminate its decisions. But the Court has insistently maintained its aloofness. It has shown little concern for the changing needs of the press, and it has steadfastly rejected any suggestion that it should make its work more accessible to the people. Meanwhile, the constitutional courts of other countries—including Canada, Germany, and Israel—have risen to the challenge. These courts have adopted innovative procedures, such as press “lock-ups” and plain language opinion summaries, to ensure that their decisions are more intelligible, and they have not suffered the loss of dignity or respect that the Supreme Court apparently fears. These trends reflect a growing understanding that the legitimacy of constitutional courts depends on their ability to make their decisions comprehensible to other participants in the political process—the executive, the legislature, and especially the people. Our Supreme Court is not immune from the realities to which other constitutional courts have responded, and, like them, it must find a way to make its decisions more easily reported and better understood

Functional Assessment of Clubfoot Associated HOXA9, TPM1, and TPM2 Variants Suggests a Potential Gene Regulation Mechanism

BACKGROUND: Isolated nonsyndromic clubfoot is a common birth defect affecting 135,000 newborns worldwide each year. Although treatment has improved, substantial long-term morbidity persists. Genetic causes have been implicated in family-based studies but the genetic changes have eluded identification. Previously, using a candidate gene approach in our family-based dataset, we identified associations between clubfoot and four single nucleotide polymorphisms (SNPs) located in potential regulatory regions of genes involved in muscle development and patterning (HOXA9) and muscle function (TPM1 and TPM2) were identified. QUESTIONS/PURPOSES: Four SNPs, rs3801776/HOXA9, rs4075583/TPM1, rs2025126/TPM2, and rs2145925/TPM2, located in potential regulatory regions, were evaluated to determine whether they altered promoter activity. METHODS: Electrophoretic mobility shift assays were performed on these four SNPs to identify allele-specific DNA-protein interactions. SNPs showing differential banding patterns were assessed for effect on promoter activity by luciferase assay. Undifferentiated (for HOXA9) and differentiated (for TPM1 and TPM2) mouse cells were used in functional assays as a proxy for the in vivo developmental stage. RESULTS: Functional analyses showed that the ancestral alleles of rs3801776/HOXA9, rs4075583/TPM1, and rs2025126/TPM2 and the alternate allele of rs2145925/TPM2 created allele-specific nuclear protein interactions and caused higher promoter activity. Interestingly, while rs4075583/TPM1 showed an allele-specific nuclear protein interaction, an effect on promoter activity was observed only when rs4075583/TPM1 was expressed in the 1.7kb haplotype construct. CONCLUSION: Our results show that associated promoter variants in HOXA9, TPM1, and TPM2, alter promoter expression suggesting that they have a functional role. Moreover and importantly, we show that alterations in promoter activity may be observed only in the context of the genomic architecture. Therefore, future studies focusing on proteins binding to these regulatory SNPs may provide important key insights into gene regulation in clubfoot. CLINICAL RELEVANCE: Identifying the genetic risk signature for clubfoot is important to provide accurate genetic counseling for at-risk families, for development of prevention programs and new treatments. ELECTRONIC SUPPLEMENTARY MATERIAL: The online version of this article (doi:10.1007/s11999-016-4788-1) contains supplementary material, which is available to authorized users