June 29, 2012

So, what did you think of the health-care opinion? I don’t mean the barrage of media commentary, but the Supreme Court’s actual opinion: all 187 pages, more than 59,000 words — including concurrences, dissents and footnotes. Did you read it?

Probably not.

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.’ ”

Got that?

As this passage shows, the court’s opinions are unintelligible for the average reader — not because of the justices’ writing style (although that, too, can be a problem), but because they laboriously untangle technical issues that most people are unlikely to understand.

Reading the opinions is an especially tall order when you consider that many Americans lack even basic knowledge about how our courts and legal system operate. In a 2006 survey, for example, only 55 percent of respondents said the Supreme Court could declare an act of Congress unconstitutional. (Twenty-two percent thought the court couldn’t do so, and 23 percent said they didn’t know.)

As the late University of California Hastings law professor Ray Forrester aptly characterized the problems with Supreme Court opinions: “The practical result of the verbosity and sheer bulk of the opinions is to erect a heavy curtain of words between an unfortunate decision and the public awareness and understanding of what is going on.”

Here’s how we could begin to lift that curtain: In addition to their regular opinions, the justices should write complementary versions, a sort of Supreme Court Cliffs Notes, directed at the public. These public opinions would explain the court’s decisions and rationale in a straightforward and educational way. Unlike traditional opinions, they would be free of jargon and footnotes, and each would include an addendum with a basic explanation of the major legal concepts applied in the decision.

To help draft these public opinions, the court might hire a small staff of legal and civic education experts who could communicate difficult concepts in plain English and help the justices translate traditional opinions into public ones. But ultimately, for these opinions to truly bring more transparency and accountability to the court, the justices would need to take authorial ownership. (Public opinions would be issued solely for educational purposes. They would not have binding legal effect.)

Retired justices such as Sandra Day O’Connor and David Souter have recognized the importance of cultivating civic education. A public opinion program would be a way for the justices to advance this cause while on the bench.

Public opinions could help Americans develop a meaningful understanding of our legal system. Greater understanding might in turn lead citizens to pay more attention to the development and adjudication of the laws that govern their lives. Of course, this change wouldn’t happen overnight, but over time it might lead to a better-informed, more engaged public.

michael.serota@gmail.com

Michael Serota is a federal law clerk in Florida. This piece is based on a recent article in the University of Miami Law Review titled “Intelligible Justice.”

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