A cloistered branch of government, the Supreme Court communicates with the rest of the nation primarily through written opinions. Whether they come to us through newspaper synopses, straight from the papers of the United States Reports, or from some intermediate source, it is almost exclusively by these opinions that we know the Court. If the opinions explaining the Court's decisions make sense to us, then all is well; if they confuse or strike is as false or unjust, then our sense of the fairness of our society is weakened. The words of the Court, then, must be well chosen—its use of language skillful and clear—or else we all, to one degree or another, suffer. To preserve our faith in it, the Court must write well.
Period‐Styles
The form of Supreme Court opinions has changed greatly over the past two hundred years. There is no evident apex or nadir, but it is possible to generalize about what Karl Llewellyn called “period‐styles.” In the first half of the nineteenth century, the “grand style” was common in American courts, as exemplified by Chief Justice John Marshall and Justice Joseph Story, and on state appellate courts by John Bannister Gibson of Pennsylvania and Lemuel Shaw of Massachusetts. Judges spoke as the “mouthpieces of divinity” in polished, spartan opinions. The quality of judicial writing declined after 1850, when the “formal style,” stressing logic and precedent, emerged. Opinions became much less readable: turgid, obscure, jargonistic, repetitious, and full of string citations and careless English. At the turn of the twentieth century, Justice Oliver Wendell Holmes's brilliant writing shone brightly amid this dreary gray. Perhaps as a result of his influence, the better Supreme Court opinions in the twentieth century have become, rhetorically speaking, increasingly powerful and persuasive. But the grand style has been dead since 1900, and the formal style, although mostly moribund since the rise of legal realism, lives on in the form of newly elaborated constitutional doctrines with layered sets of “tests” and “prongs” and “standards” and “hurdles.”
This broadly conceived evolution of Supreme Court opinions is explainable partly on pragmatic grounds. In Marshall's day, the Court had more time to perfect its work product than in Chief Justice Melville Fuller's day, when dockets had become more and more crowded and judges more and more rushed. Further, the judges of 1900, according to some commentators, were not as well educated as those of 1800, and therefore less likely to have a command of the language. In the latter half of the twentieth century, the justices have been cast more in the role of editors than of authors of their opinions; increasingly, law clerks have been delegated the task of putting into words what the justices have decided and why—hence the pervasive “law‐review style” so often decried by Court observers.
From a literary perspective, the gems in the United States Reports are well hidden. That exalted set of books has been called “a great literary wasteland (Frank, 1958, p. 130). A collection of first‐rate writings might be gleaned from its nearly five hundred volumes, but it would account for less than half a percent of the whole. Likewise, from a substantive legal perspective the opinions may be said to be wanting. Few of the Court's opinions genuinely illuminate the area of law with which they deal.
Whatever its inadequacies, the Supreme Court opinion is one of the most powerful tools of law and of rhetoric in American life. The practice of issuing written opinions has added immensely to the power and prestige of the Court. Justice William Brennan spoke in 1979 of the “fundamental … interdependence of the Court and the press,” for it is through the press that the majority of Americans—probably the majority even of lawyers—learn what they know of the Court's activities. More important, though, is the role of opinion writing in coming to a just resolution of any given case. Chief Justice Charles Evans Hughes said that “there is no better precaution against judicial mistakes than the setting out accurately and adequately [of] the material facts as well as the points to be decided” (Hughes, 1928, p. 64). As anyone who has set out to write a judicial opinion well knows, the writing hones the thinking and sometimes exposes weaknesses in a tentative determination that was ill conceived. As judges often say, “Some opinions just won't write.”
Reduction to Writing
Nothing in the federal Constitution, of course, requires that opinions be reduced to writing. In fact, during the Court's first decade, most were not; during the 1790s, the Court reduced its opinions to writing in only the most important cases. Justice James Iredell's draft opinion in Chisholm v. Georgia (1793) is the earliest known manuscript and just about the only one of that decade. We do not know just how much of the early reports is the product of justices and how much is the handiwork of the unofficial reporter, Alexander James Dallas, who reported only sixty cases in the first sixteen terms after 1790.
William Cranch, the first official reporter (appointed in 1801), expressed relief at “the practice which the court had adopted of reducing their opinions to writing in all cases of difficulty or importance.” By Cranch's time, written opinions were the rule, but it was not until 1834 that an order required all opinions to be filed with the clerk.
Opinion of the Court
The justices' own great uncertainty in the early nineteenth century was not whether to reduce opinions to writing, but whether to deliver seriatim opinions. During the 1790s, the justices delivered opinions in turn, after the manner of the King's Bench, except that the justices spoke in inverse order of seniority. For example, in Ware v. Hylton, the most important case of 1796, Justice Samuel Chase delivered a long opinion and then every other justice gave his separate opinion.
This practice changed abruptly when Marshall became chief justice in 1801. Marshall instituted what we now know as the “opinion of the court,” that is, an opinion attributed to a single justice but speaking for the entire court or a majority of its members. In Marshall's day, almost all the opinions were attributed to Marshall himself, although some of these were written by his colleagues. By means of the univocal opinion, Marshall was able to increase not only his own authority as chief justice but also the Court's authority within the American polity.
President Thomas Jefferson, in well‐known correspondence, protested against judicial opinions that were “huddled up in a conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind by the turn of his own reasoning” (Letter to Thomas Ritchie, 25 Dec. 1820, in Works of Thomas Jefferson, 1905, vol. 12, pp. 177–178). Jefferson wanted a rule requiring judges to announce their opinions seriatim and thus to take their positions publicly. Although he urged his own appointee Justice William Johnson, known as the “First Dissenter,” to write separately so as to attack Marshall's dominance, Johnson did so only sporadically. Had he done so more frequently, Johnson might have weakened his influence on the Marshall Court.
From Marshall's time until the death of Chief Justice Hughes—for well over a century—the Court spoke generally in single opinions, with occasional concurrences and dissents in matters of great importance. In his thirty‐five‐year tenure on the court, Marshall dissented only nine times, less often in a long career than most of today's justices dissent in a single year. From Chief Justice Harlan Fiske Stone's time (1941–1946) to the present day, both concurring and dissenting opinions have been commonplace. Some commentators have called the modern fragmentation a return to seriatim opinions.
Scholars who follow the Court seem to agree—without dissent—that the proliferation of separate opinions is an undesirable trend. John P. Frank writes that “no single thing has more depreciated the standing of the institution since the time of Hughes than the impression that it is overtalkative” (Frank, p. 129). Other Court watchers agree that separate opinions have become excessive.
Proliferation of Dissents
At its best, a dissent in the high court is, as Chief Justice Hughes termed it, “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed” (Hughes, p. 68). That description applies nicely to what Justice Holmes and Justice Louis D. Brandeis did in giving dignity to dissenting opinions; indeed, Holmes was known as “the Great Dissenter” and was paid the honor of having an anthology of his dissents published. But as often as not, nowadays, dissents express disagreements over matters once considered too inconsequential to merit a separate opinion, and, in Justice Lewis F. Powell's words, they are not “a model of temperate discourse.” Thus, popularizers of the Court's activities are prone to speak of personal enmities on the Court, basing their inferences on nothing more than the language used in this or that justice's separate opinion.
Whereas the rhetoric of separate opinions may have become less restrained than yesteryear merely because of the gradual change of mores, the frequency of such opinions probably reflects something deeper than a mere loss of restraint. Justice William H. Rehnquist attributed the rise of concurrences and dissents to the sharp jump in recent years in the percentage of cases in which a constitutional claim is raised and, more to the point, in which a constitutional claim is sustained. Constitutional adjudication may well invite more separate opinions than does adjudication in other areas of law.
Justice Brennan's philosophy of dissenting illustrates just how different the modern view is from Chief Justice Hughes's. In an essay entitled “In Defense of Dissents,” Brennan noted a justice's duty to dissent when in disagreement with the majority. As he wrote in the Hastings Law Journal 37 (1986), “Each justice must be an active participant, and, when necessary, must write separately to record his or her thinking. Writing, then, is not an egoistic art—it is duty. Saying, ‘listen to me, see it my way, change your mind,’ is not self‐indulgence—it is very hard work that we cannot shirk” (p. 427).
Jefferson might relish this near‐return to his ideal, but it robs the Court's opinions of the oracular quality they once had. Multiplicity of opinions may also impair the work of the Court. Frank studied the separate opinions of Justice Felix Frankfurter—the “concurringest” member of the Court during his time—and showed that they were almost never cited by anyone. Thus, the conclusion that Frankfurter “consumed a large portion of his energy and talent in essays which, for all practical purposes, might as well have been written on paper airplanes and thrown out a Supreme Court window” (Frank, p. 126).
Law Clerks and Verbosity
The crush of work at the Court is undoubtedly the single greatest influence on the style of modern opinions. Justice Harry Blackmun was perhaps being delicate when he used the future tense to forecast a “breaking point” at which “one's work becomes second‐rate” (see Workload). Opinion writing is the most time‐consuming of the justices' work. Today, justices average more than twenty‐five signed opinions apiece each year.
Traditionally, opinion writing has been viewed as that aspect of the justices' work in which law clerks are least competent to help. Yet federal judges at all levels are being transformed from writers into editors of their law clerks' work; the process is all but complete at the Supreme Court. The transformation is a recent one. Chief Justice Fred Vinson was anomalous in “writing with his hands in his pockets,” telling his clerks generally what he wanted and then criticizing drafts and suggesting revisions. In the 1990s, the anomaly would be to find a justice regularly writing his or her own opinions.
Ghostwriting does not present the problem most often raised by those unfamiliar with the practice; it does not empower inexperienced law clerks to participate in the decision making. It does, however, gravely affect the deliverances of the Court. They are longer and more diffuse, loaded with footnotes, impersonal in tone, and unimaginative in presentation. Drafted by clerks who are former law‐review editors, the opinions partake of most of the negative traits of law‐review articles. As the number of clerks almost doubled between 1969 and 1979 (to a total of thirty‐two), so these qualities associated with their work on opinions also increased.
Very likely, the clerks increase verbosity rather than productivity. In 1889, the Court produced 265 signed opinions with no help from law clerks. (Granted, this period did not mark the high point of the Court's judging or of its literary style.) In 1973, when each associate justice had three clerks and the chief justice had four, the Court produced only about 130 signed opinions, but their length vastly outstripped the length of nineteenth‐century opinions. Indeed, just in the fifty years from 1936–1986, the average opinion doubled in length. In the flurry of concern over the length of the Court's opinions, Joseph W. Little half‐mockingly suggested a constitutional amendment limiting opinions to five pages. That would be a far cry indeed from the 243 pages—50,000 words, all told—in which the Court expressed its nine separate opinions in Furman v. Georgia (1972). The effect of such editorial competition can only be to drive the reader to the opinion's summary preface and away from the text.
Not alone have law clerks been blamed for the Court's blossoming wordiness. Some commentators have cited the increasingly complex and ideologically heated issues generated by our ever‐growing administrative state and our heightened notions of personal rights. As Justice William O. Douglas once observed, “the decision‐making process is not getting any easier.” Others maintain that the issues are no more difficult than in Justice Holmes's day, that it is patronizing to suggest that they are, and that the real problems are instinctive verbosity and lack of time to hew the clerks' work down to proper size.
The modern style of judging is no doubt also responsible. It was not just Holmes's habit of standing at a drafting table that helped him achieve brevity—“Nothing conduces to brevity like the caving in of the knees,” he once said. It was also his elliptical treatment of legal issues, a treatment that most judges and scholars today would find unacceptable. In one of his most famous sententious formulations, in Buck v. Bell (1927)—“Three generations of imbeciles are enough” (p. 207)—Holmes justified a vote that he might not have been able to sustain if he had had to detail his eugenic reasoning. Judges in the latter half of the twentieth century value an explicitness and a painstaking process of working through every step of the reasoning. Holmes would have been impatient with all that.
As a result of the prevailing legal ethos, we have lost much that is subtle and suggestive, and we have gained longer opinions and bulkier volumes. But not all that bulk is justified by a modern yearning for greater specificity. Generally, it is no trick at all to do what law professors regularly do in producing their casebooks: excise large chunks of the Court's opinions to expose the factual and analytical discussions that are of true importance in deciding a given case.
The exceptions often delight readers. In the shortest opinion in recent memory, Justice John Paul Stevens—the only justice who, in the 1990s, wrote his own first drafts of opinions—dispensed with McLaughlin v. United States (1986) in five short paragraphs. The opinion harks back to the pithy style of Holmes.
Evaluating the Justices
In the history of the Supreme Court, Marshall, Holmes, and Robert H. Jackson are at the first rank of judicial stylists. Marshall's grand style, of course, is distinctly rooted in the nineteenth century: orotund, divine‐sounding, inerrantly lawgiving. Holmes and Jackson, as twentieth‐century judges, are more nearly our contemporaries. Whereas other modern judges have usually made adventurous ideas dull, Holmes and Jackson could make the very dullest case a literary adventure.
Holmes habitually used rhetorical devices such as alliteration, metaphor, and periodic sentences to emphasize his points. His antitheses are legion. For example: “If a business is unsuccessful it means that the public does not care enough for it to make it pay. If it is successful the public pays its expenses and something more” (Arizona Copper Co. v. Hammer, 1919, p. 433). The literary critic Edmund Wilson went so far as to call Holmes's style “perfect.”
Legal commentators have not been quite so kind to Holmes's style. Judge Richard A. Posner suggests that the power of Holmes's famous dissent in Lochner v. New York derives more from rhetorical devices than from close reasoning. Judge Abner Mikva says that purely Holmesian approach is now untenable, inasmuch as Holmes was “not above shaping or neglecting certain facts to preserve the force of a narrow analysis.” Professor Jan Deutsch finds Holmes's persuasive power in sketching the selective vignette, not by detailing the “murky and confusing truth of how things are, but by confirming our felt certainties about how we know they should be.”
These criticisms say as much about the critics as they do about Holmes. Holmes was no doubt conscious of his omissions: “The eternal effort of art, even the writing of legal decisions, is to omit all but the essentials.” If Holmes had written so as to remedy the vices that his critics perceive, he would have introduced many others, including prolixity. The considerable virtues in his almost laconic style may necessarily have entailed a few vices.
Nor has Jackson been without detractors. But when it came to phrasing a thought aphoristically, memorably, pungently, Jackson was without equal. Like Holmes, Jackson was masterly with antithesis: “Very many are the interests which the state may protect against the practice of an occupation, very few are those it may assume to protect against the practice of propagandizing by speech or press” (Thomas v. Collins, 1945, p. 545). His wordplay was never merely playful; it was usually telling: “We can afford no liberties with liberty itself” (United States v. Spector, 1952, p. 180). His famous example of chiasmus expressed an insight about the Court incomparably well: “We are not final because we are infallible, but we are infallible only because we are final” (Brown v. Allen, 1953, p. 540). Justice Frankfurter wrote of Jackson that his writing “mirrored the man in him” more completely than any other “who ever sat on the Supreme Court,” and that Jackson belonged to “the naturalistic school [of opinion writers]. He wrote as he talked, and he talked as he felt.”
However, talented writers on the Court have been rare. Justice Douglas was the only justice in the history of the Court who inarguably could have made his living as a professional writer on nonlegal subjects. The Court has had more justices of the ilk of Justice James Moore Wayne, whose style was criticized around 1850 as being “overloaded with words; scarcely any of his sentences convey a distinct idea; and some of them are quite beyond the pale of criticism.” That description fits much of what Justices George Shiras and Samuel Blatchford, or Chief Justice Edward D. White wrote, as well as the early opinions of Justice Harold M. Burton or the work of any number of others. In recent years, Chief Justice Warren Burger received more criticism than his colleagues for incoherent footnotes and artless opinions.
Among the highly regarded judicial writers are Holmes, Jackson, and Douglas, but also Justices Louis Brandeis, Benjamin Cardozo, Frankfurter, and Hugo Black. Brandeis, who had great rhetorical skill and brought to the bench his penchant for the “Brandeis brief,” which took tirelessly thorough account of sociological as well as case‐specific facts. Holmes is said to have remarked of Brandeis, “He believed in footnotes, and I didn't.”
Cardozo would take a page to say what Holmes could say in a sentence, and on occasion his quest for exalted eloquence made his writing vacuous. In Welch v. Helvering (1933), involving the question whether a person who paid his employers' debts could take a tax deduction, Justice Cardozo said: “Life in all its fullness must supply the answer to the riddle” (p. 115). As Dean Erwin Griswold once pointed out, these are nice words, but essentially meaningless. On the whole, Cardozo's writing as a state judge—as a common‐law judge—ranks more highly than his writing on the Supreme Court.
Frankfurter is a special case. English was his second language; his feel for words has been compared to Nabokov's. That comparison is extravagant, however, unless it merely stresses Frankfurter's fascination with ornate words, such as adumbrate, excogitate, quixotism, and sub silentio. Frankfurter often lapsed into “abstractitis”: “The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities” (Sweezy v. New Hampshire, 1957, pp. 261–262).
Both Black and Douglas had bold, no‐nonsense styles. Their broad strokes of the pen to resolve constitutional uncertainties met with scorn from law professors. Both Black and Douglas might have been called technically deficient, result‐oriented, and unscholarly, but part of the reason is that they were the only justices of their time whose opinions displayed a concern that nonlawyers might ever read the reports.
On the Court today, Antonin Scalia and Rehnquist are among the strongest writers. Their opinions delight in metaphor; they are piquant, witty, and sometimes biting. From all that one gathers, though, these qualities emerge when the justices have the time to edit and rewrite the work of their clerks. What is more usual are the tendencies that all the modern justices' opinions show: a plodding, pedantic style that unnecessarily emphasizes minor points and does not stop when the job is done.
Unfortunately, the Court's opinions rarely receive the literary scrutiny that might gradually lead to better opinions. Perhaps this failure on the part of academics, lawyers, and judges is due to the mistaken notion that the writing is merely incidental to the judging, not the greater part of its essence.
See also Briefs; Opinions, Assignment and Writing of; Reporters, Supreme Court; Reporting of Opinions.
Bibliography
- John P. Frank, Marble Palace: The Supreme Court in American Life (1958).
- Charles Evans Hughes, The Supreme Court of the United States (1928).
- Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960).
- Robert F. Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (1989).
- Richard A. Posner, Law and Literature: A Misunderstood Relation (1988)
— Bryan A. Garner
