The Changing Discourse of the Supreme Court
12 University of New Hampshire Law Review 29 (2013)
44 Pages Posted: 24 Jan 2014
Date Written: September 15, 2013
Academics, judges and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most Americans. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style. There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing complexity of issues that the Court is considering. Others suggest that the shift could be attributable to the lack of trial court experience among Justices.
In response to the criticisms, a few academics have conducted empirical research to determine whether certain opinions of the Supreme Court are more readable than other opinions. The authors of those studies have also attempted to identify factors that might influence the readability of an opinion, including (1) whether the opinion is a majority or dissenting opinion; (2) the number of Justices joining the opinion; (3) the ideology of the Justice authoring the opinion; and (4) the subject matter of the underlying dispute.
None of the studies, however, have examined whether the Court’s opinions have, in general, become less readable over time, as many critics assert. The attached article compares the readability of the opinions issued by the Supreme Court in the 1931, 1932, and 1933 terms to the opinions issued by the Court in the 2009, 2010, and 2011 terms. Since some commentators have suggested that the obfuscation of Supreme Court opinions is related to the increasing complexity of issues that the Court is addressing, it seemed logical to compare the readability of the Court’s opinions from the 1930's, at a time before the “staturification” of law, and the expansion of federal administrative programs during the New Deal, to the modern opinions. In addition to exploring whether the Court’s opinions have become less readable, this article also examines whether factors identified in other studies, such as the opinion type or the subject matter in dispute, correlate to the readability of the Court’s opinions, either in the 1930's or today, and whether that has changed over time. Finally, the article examines which Justices, in the 1930s and today, wrote the most readable and least readable opinions. The data reviewed confirm that the Court’s opinions today are significantly longer and less readable than the opinions from the 1930s, but it is not necessarily related to the “statutorification” of law or the expansion of federal administrative programs. It may, however, be related to a change in the culture of the Court that began in the 1940s, the proliferation of concurring and dissenting opinions. The data confirmed the findings of earlier studies that opinions addressing criminal law are generally the most readable, although they are significantly less readable today than they were in the 1930s. Opinions addressing administrative law and statutory law issues were the least readable in the 1930s and today. With respect to individual Justices, Justices Kagan and Cardozo wrote the most readable opinions for their respective time periods, while Justices Sotomayor and Stone wrote the least readable opinions.
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