Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.Oh, don't I know this! Trying to teach constitutional law cases to law students, I sometimes feel I need to defend myself from their hostility by stating the obvious: I didn't write these cases! Or: I'm really sorry but this happens to be the Supreme Court case on the subject.
A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It’s not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.
Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices.
Like me, Mazzone looks to the new Chief Justice to whip the Court's work product into shape:
My advice for Chief Justice John G. Roberts: double the number of cases the Court decides (it decided 123 the term Roberts clerked for Rehnquist), halve the length of opinions, make unanimity the goal, and discourage separate concurrences.Mazzone doesn't mention the other change in the offing and the effect it will have on the problems he describes. Justice O'Connor is leaving, and Justice O'Connor was frequently the one who insisted on carving out a middle path between two crisper opinions. Take away Justice O'Connor and replace her with someone who will commit to plainly stated doctrine, and you may not need all that much of the new Chief's charismatic powers to turn things around.
But will we be happy with the new set of problems that replaces the old? Hazy, blabby cases are a pain, but clear doctrine -- quite a shock after all these years -- might hurt a lot more. And it's going to hurt some of us a lot more than others, which explains the hand-wringing over the impending confirmation of Samuel Alito.
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Dave: The problem is the excessive length and number of opinions in the few cases they do decide. So is that more or is that less? Also, when the Supreme Court doesn't take cases and resolve issues, it leaves much more to be done by the lower courts and results in disuniformity and uncertainty. You have to factor that into your thinking about less government.
I was never a big fan of Earl Warren but his greatest accomplishment was a unanimous decision in Brown v. Board of Education (347 U.S. 483 (1954)). “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place” concise to the point and unanimous. Can you imagine if that decision was decided last year with six opinions among the Court and an O’Connor “undue burden on the rights of minority children” test being applied and interpreted by the lower courts?
Also, if the doctrine is clearer and the outcomes to litigation more predictable, more people will see the reason to settle the case or not to file at all.
Related: NYTimes Alito Memos Supported Expanding Police Powers Talkleft summarizes The Justice Department released 470 pages of documents about Judge Sam Alito to reporters Monday on highly techical legal issues -- and gave them three hours to read them
Despite the lack of time to fully digest them, as the New York Times reports, at least one thing was abundantly clear:
"In several of the memorandums, however, Mr. Alito makes a series of arguments espousing a broad view of law enforcement authority and a skeptical view of proposals to protect individuals from legal investigations."
The Washington Post reports the memos show Alito was hostile to foreigner's rights:
"As a senior lawyer in the Reagan Justice Department, Samuel A. Alito Jr. argued that immigrants who enter the United States illegally and foreigners living outside their countries are not entitled to the constitutional rights afforded to Americans."
And Jeralyn Merritt concludes Abortion is not the critical issue in Alito's nomination. Freedom and the right to life for the already born is more important.
I am curious as to the constitutional law prof take on this.
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