The Volokh Conspiracy

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Volokh Conspiracy

Good news for those who don't like judicial opinions


Adam Liptak has a story in The New York Times about the Supreme Court's unexplained orders. It begins:

People used to complain that Supreme Court decisions were too long and tangled. Those were the days.

In recent weeks, the court has addressed cases on the great issues of the day without favoring the nation with even a whisper of explanation. In terse orders, the court expanded the availability of same-sex marriage, let a dozen abortion clinics in Texas reopen, and made it harder to vote in three states and easier in one.

Judges and lawyers who used to have to try to make sense of endless, opaque opinions now have to divine what the Supreme Court's silence means.

There is something odd about the court's docket these days. When the court considers a minor case on, say, teeth whitening, it receives a pile of briefs, hears an hour of arguments and issues a carefully reasoned decision noting every justice's position.

When the stakes are higher, the court turns oracular.

"The court's unexplained orders don't always live up to its otherwise high standards of legal craft," said William Baude, a law professor at the University of Chicago. …

I'm quoted several other times in the story, and you can read the whole thing to get my thoughts. There have been some other criticisms of the Court's opacity lately, such as this piece by Rick Hasen (accessible via Google), and this Economist post.

I don't agree with all of the calls for transparency, including Hasen's (for reasons I discussed here and here). But I do think that some of the orders merit more explanation than they've gotten.

My more extended thoughts on the court's orders docket will be coming out later this year in the NYU Journal of Law and Liberty's Supreme Court issue.