Friday, November 19, 2010

Liptak: High Court’s Judicial Craftsmanship Questioned

Adam Liptak of the New York Times takes the U.S. Supreme Court, under the leadership of Chief Justice John G. Roberts, to task for the Court’s sweeping and politically polarized decisions. More importantly Liptak raises concern about the quality of the Court’s judicial craftsmanship.

Liptak writes that the Court in Brown v. Board of Education, 347 U.S. 483 (1954), the towering 1954 decision that held segregated public schools unconstitutional, managed to do its work in fewer than 4,000 words. When the Roberts Court returned to just an aspect of the issue in 2007 in Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701 (2007), it published some 47,000 words, enough to rival a short novel. In more routine cases, too, the Court has been setting records. The median length of majority opinions reached an all-time high in the last term.

Critics of the Court’s work are not primarily focused on the quality of the justices’ writing, though it is often flabby and flat. Instead, they point to reasoning that fails to provide clear guidance to lower courts, sometimes seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings.

Liptak wrote that the opinions in Citizens United v. Federal Election Commission, 130 S.Ct.876 (2010), the January decision that lifted restrictions on corporate and union spending in candidate elections, spanned 183 pages and more than 48,000 words, or about the length of “The Great Gatsby.” The decision — ninth on the list of longest majority opinions — was controversial, but the questions it addressed were not particularly complicated.

In May, the Court struck down life-without-parole sentences for juvenile offenders who did not kill anyone. In Graham v. Florida, 650 U.S. ___ (2010), the Court said only that states must provide “some meaningful opportunity to obtain release.” In dissent, Justice Clarence Thomas wondered what that could possibly mean, wrote Liptak.

There are a number of the other examples of the Court either rambling on or being ambiguous with regard its decision. Anyone interested in getting a glimpse into the workings of the Roberts Court should read this article.

Liptak's article can be found at:

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