21 Pages Posted: 12 May 2012 Last revised: 12 Feb 2016
Date Written: May 11, 2012
The judicial opinions issued by the U.S. Supreme Court are binding law in America, impacting nearly every aspect of life in the polity. And yet, both their sheer complexity and astonishing length render them unintelligible to most Americans. But regardless of whether they are understood or not, the Court’s opinions establish a range of compulsory legal obligations that apply to all who fall within its sweeping jurisdiction. And compliance with these obligations is essential, for the individual who fails to comport her behavior accordingly risks confrontation with the coercive power of the State. This situation thus presents a troubling paradox: while the Court’s opinions constitute the rule of law, governing a wide array of both public and private affairs, the average American is likely to find them utterly incomprehensible.
The problematic nature of the unintelligibility paradox is similarly highlighted by the essential democratic values that the practice of judicial opinion writing otherwise redounds to society. At the heart of American political theory is the foundational principle that legitimate political authority is rooted in public consent — as the Declaration of Independence phrases it, only through the “consent of the governed” are the “just powers” of government derived. But while the elected branches of government are able to secure legitimacy qua consent at the ballot box, an unelected and life-tenured federal judicial branch cannot. These judges must instead rely upon the power of persuasion; that is, by providing reasoned justifications for their rulings, judges are able to secure the “tacit approval and obedience of the governed.” And yet, persuasion demands comprehension at the very least. As such, when judicial opinions are unintelligible to the governed, judges lack the democratic legitimacy that the exercise of reason-giving would otherwise afford them.
The detrimental impact of the unintelligibility of the Court’s work, however, is not lost on many of our nation’s commentators, who have urged the justices to increase both the clarity and brevity of their opinions with the hopes that such changes would make them more accessible. But while such reforms are necessary, they are not alone sufficient to address the true breadth of the public comprehension gap. The variance between the complexity of the issues the Court confronts and the astonishingly low levels of civic literacy in America requires a more robust, bottom-up approach to reform. This Essay proposes one potential solution in the form of a two-tier system of opinion publication. Specifically, it argues that the Court should begin publishing what I call “Public Opinions ”— in essence, a translation of the Court’s regular opinions into a more publicly accessible, civic education-based format — and that it should also establish an “Office of Public Opinion,” consisting of an interdisciplinary staff of lawyers, civic educators, and civic literacy experts, to implement a comprehensive Public Opinions program.
Suggested Citation: Suggested Citation