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 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.
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).’ 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.
As the late University of California Hastings law professor Ray Forrester aptly said: 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 CliffsNotes, directed at the public. These public opinions would explain the court’s decisions and rationale in a straightforward and educational way.
Greater understanding might in turn lead citizens to pay more attention to the development and adjudication of the laws that govern their lives.
Michael Serota is a federal law clerk in Florida.
