NYT: Supreme Court Using More Words, and Making Less Sense, Than Ever

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Last week, the New York Times reported that the median length of U.S. Supreme Court majority opinions has more than doubled since 1953, and during the 2009 term that number reached an all-time high of 4,751 words. Adam Liptak wrote that "there is an emerging parallel critique as well, this one concerned with the quality of the court's judicial craftsmanship."

That seems to be a long way of saying "they write crappy opinions."

The criticism is not because the justices (or their clerks) are bad writers, Liptak says, but because the court supposedly "fails to provide clear guidance to lower courts" more often these days, "seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings." I certainly agree that it often fails to provide clear guidance, but anybody who thinks this is a new phenomenon might want to go read some older cases with all deliberate speed.

I personally would cut the Roberts court some slack on that point, but the increasing number of words being used to say these things is also disturbing. As you can see from the Times graphic —

Using More to Say Less

— the median length of majority opinions has increased from less than 2,000 in 1953 to over 4,700 in 2009, although the number fluctuated around 4,000 for decades. There was a spike in the early 1970s, and it is tempting to blame that on Vietnam or global warming but it probably had more to do with the makeup of the court. Warren Burger became Chief Justice in 1969, and Justice Blackmun started in 1970. Others are more qualified to opine on whether one or both of those guys were exceptional blowhards, or what other factors might have contributed, but up the numbers went and they have hovered around 4,000 ever since. Until now.

And that's just the median length. The article notes that the Citizens United opinion in January (including dissents and concurrences) was over 48,000 words, or about the same length as "The Great Gatsby," which I also didn't read. That puts it ninth on the list, well below the chart-topping Buckley v. Valeo (76,639). But five of the top ten have been unleashed by the Roberts court.

The justices, of course, are not the only legal practitioners afflicted by an inability to cut to the chase. In 2007 I found it remarkable that one firm filed an appellate brief that was 239 pages long and contained 58,922 words. Obviously, that is 1.2 Gatsbys in length and over half the length of Huckleberry Finn. If we insist on burdening judges with that kind of thing, maybe it should not be surprising that they have to use more words to respond.