Richard Posner's Slate SCOTUS Review: Biggest Flaw in This Term's Opinions (#UChiLawSCt)

What’s the biggest flaw in the opinions this term?
Richard A. Posner
June 21, 2013

Eric’s piece about the relative coherence of the liberal and conservative coalitions on the Supreme Court is very interesting, but I am inclined to question his statement that one “decidedly unfashionable” explanation for this “is that the conservatives (or some of them) genuinely care about, and disagree over, important matters of law.” I’m not sure that such an explanation is “unfashionable”; I imagine that most judges, lawyers, and law professors would say (though some with tongue in cheek) that Supreme Court justices “genuinely care about, and disagree over, matters of law,” though this may depend on what a matter of law is. My own view is that any statement in a judicial opinion is a matter of law. (That is the legal realist in me.)

An alternative explanation for the phenomenon Eric notes is that the liberal coalition is smaller and weaker than the conservative one, and that this pushes the liberals to cohere, lest they seem ineffectual. For there are four conservatives, one conservative-leaning moderate (Kennedy), one liberal-leaning moderate (Breyer), and the three liberals. So in a sense the liberals are outnumbered 6 to 3, and had therefore better hang together.

I hadn’t actually read many Supreme Court decisions this term as they came down, so in preparation for this stint of commenting for Slate I sat down and read, in a short period, all the cases decided through May 20. Maybe “read” is too strong a word for what I did because I didn’t read every word in all or even most of the opinions. But I read enough to form two impressions. The first is that they are on average quite well written in the sense that each sentence is clear, though the opinion as a whole may not be. Second, they are inordinately long. Three years ago Adam Liptak wrote an excellent article in the New York Times about the length of Supreme Court opinions. He found that the length of the median majority opinion in the previous term was 4,751 words, and of the entire decision, including concurring and dissenting opinions, 8,265 words. Both were record lengths. In the 1950s the median length of majority opinions had been only about 2,000 words.

Richard A. Posner