Most Americans don’t have the time, legal training or interest to parse the court’s long, complex and technical opinions. That’s a problem. There is no substitute for learning, directly from the source, about how the justices came to their decisions.
Sure, there’s an abundance of commentary, some of which — such as on SCOTUSblog, for example — is actually fair and balanced. But no commentator is infallible, and partisanship can insert itself into even the most routine reporting. And sometimes, the rush to report the news first — I’m looking at you, CNN and Fox News — can lead to sheer misinformation.
Furthermore, the average American’s inability to understand the justices’ decisions detracts from the court’s transparency and accountability.
We expect accessible explanations from our elected officials, after all. Although the products of legislative and executive action — statutes, regulations, executive orders, etc. — can also be long, complex and technical, those responsible for enacting and executing them must explain to we, the people, what they’re up to. And they’re expected to do so in plain English, whether through White House addresses, statements on the floor of Congress, or their Web sites and other forms of electronic communication.
When it comes to the Supreme Court, however, there are no public addresses or even televised proceedings. The justices’ written opinions are the only explanation of how they exercise their power, which affects nearly every facet of American life. Yet, for most Americans, these opinions are neither accessible nor comprehensible.
First, there is the issue of length. As Adam Liptak has noted in the New York Times, Supreme Court opinions are only getting longer. While the median length of decisions was around 2,000 words in the 1950s, that figure had surged to 8,265 words by 2010. The monumental Citizens United v. Federal Election Commission
opinion, for example, weighs in at 176 pages, or about 57,000 words.
But length is not the only problem. There’s also complexity. Consider the following passage from the health-care opinion:
“Section 6201(a) authorizes the Secretary to make ‘assessments of all taxes (including interest, additional amounts, additions to the tax, and assessable penalties).’ (Emphasis added.) Amicus contends that the penalty must be a tax, because it is an assessable penalty and §6201(a) says that taxes include assessable penalties.
“That argument has force only if §6201(a) is read in isolation. The Code contains many provisions treating taxes and assessable penalties as distinct terms. See, e.g., §§860(h)(1), 6324A(a), 6601(e)(1)-(2), 6602, 7122(b). There would, for example, be no need for §6671(a) to deem ‘tax’ to refer to certain assessable penalties if the Code already included all such penalties in the term ‘tax.’ ”