The Changing Discourse of the Supreme Court

Abstract

[Excerpt] “Academics, judges, and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most American citizens. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style. There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing complexity of issues that the Court is considering. Others suggest that the shift could be attributable to the lack of trial court experience among Justices. Some also speculate that a greater reliance on law clerks might be fueling a shift. Regardless of the reason for the shift, if such a shift is truly occurring, it could have important repercussions, depending on how one views the purposes of the Supreme Court’s opinions and the audiences to whom they are directed. If, as some academics assert, Supreme Court opinions are directed, at least in part, toward the public and are designed, at least in part, to advise the public about legal rights and responsibilities and to build public confidence in the rule of law by demonstrating a rational and transparent decision-making process, then unreadable Supreme Court opinions undermine those goals. If, however, Supreme Court opinions are simply directed to the parties before the court, other courts and agencies, lawyers, and law students, the shift is less problematic.