In Mark Walsh’s recent ABA Journal article [“Communication Skills 101,” ABA Journal, May 2013], Dean Erwin Chemerinsky of the UC Irvine law school, argues persuasively for various reforms designed to simplify the format of the information we receive from the highest court in the land. Among other things, Chemerinsky advocates a short, plain-English summary of the decision drafted by the Court; announcement of multiple decisions over several days, instead of all at once; advance announcement of decisions’ release dates; and more. Chemerinsky is one of the foremost Supreme Court scholars of our day, and I respect his thinking on the high court. Here, he is on target with the problem at the heart of this issue.
That said, I would go further. After all, Chemerinsky is asking the Court to add a short, plain statement of the holding – a sort of super-syllabus, with no precedential value. The response of a former Supreme Court law clerk, quoted by Walsh, is predictable (and likely to be offered by the Supreme Court itself): the cases the high court decides are complex, and the justices would not want to over-simplify their work and possibly add confusion, rather than easing it. But the more fundamental issue, in my view, is that for the past several decades Supreme Court opinions have been getting progressively longer, more complex and more opaque. I have heard Chemerinsky speak brilliantly on the increasing length, complexity and slowness of release of Supreme Court opinions over recent decades. In particular, the number of non-majority opinions – plurality opinions, as well as concurrences and dissents – has gone up exponentially.
What is the justification for this increasing obfuscation? I am uncomfortable with the idea that the law is more complex than ever before (are we really facing issues more complex than the Missouri compromise, court packing or the creation of the Internal Revenue Service?). Further, the fact that we can use on-line research tools to gather more citations and information than before does not necessarily mean that we should. After all, the Brandeis brief, with its exhaustive citations and factual background information, came into existence long before WESTLAW or LEXIS. For a time, “Brandeis brief” was a pejorative term; now, it seems the Supreme Court is taking pride in the volume of words crammed into each opinion.
My own watchword for legal writing (many associates have grown weary of hearing this) is “simplicity.” Our function as lawyers, I explain, is in part to take difficult and complex fact settings or legal frameworks and distill them as far as possible down to their basic elements. While we must identify relevant facts and apply pertinent law to them, we help both our clients and the courts when we avoid verbal embellishment. If the Supreme Court were to find its way to doing something similar, I believe the Court, the lawyers and the people would benefit.