There are two components of every court opinion: first, the “holding,” which is what the court did — dismiss the case, uphold the jury verdict, remand for a new trial, overturn a sentence, et cetera — and, second, the “reasoning,” where the court explains why it did what it did. For the parties to the case, the most important part is the holding: it tells the parties who won this round, sometimes who won the fight. For everyone else, the holding is meaningless: we want to know the reasoning which will guide future courts in deciding future cases.
The Supreme Court decides very few cases; in a a small number of those very few cases, the holding has a big impact on the nation (just ask Al Gore), but most of the time it’s their reasoning that matters. As the New York Times reported last week (Justices Are Long on Words but Short on Guidance), though, it seems their reasoning has room for improvement:
The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.
In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.
And it increasingly does so at enormous length.
Brown v. Board of Education, 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 v. Seattle, 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.
If you’re still reading this post, then you should read the article. To summarize it here would be a disservice to the many issues addressed and the wealth of links provided.
So let’s move to the big question: considering how “fuzzy” and “unwieldy” the Supreme Court’s reasoning can be, do lawyers and courts still rely on their opinions?
At first blush, the answer to that question is obvious: of course everyone does. When the Supreme Court says that a corporation’s principle place of business is its nerve center, or that Fed. Rule Civ. Proc. 23 trumps state restrictions on class actions, or that people have no right to police enforcement of restraining orders, then that’s the law. We all follow it.
But those are holdings. What about the reasoning?
That’s where things get tricky. Consider Bilski v. Kappos. Can you patent a business method or not? The Supreme Court said: maybe you can in theory, but we’ve never seen one worthy of patenting.
What’s that mean going forward? Nobody knows. It’s up to the USPTO, the District Courts, and the Federal Circuit to figure it out until the Supreme Court gives us a better answer.
Fact is, in the day-to-day operation of the law, even federal courts rarely look to the Supreme Court’s reasoning to decide cases. Most of the time — like in the trial court opinions and unpublished appellate opinions that resolve the bulk of cases — courts don’t even address the Supreme Court’s reasoning, much less use that reasoning as a means of deciding the case at hand.
Tellingly, even in published Court of Appeal decisions, the most important opinions short of the Supreme Court, the Supreme Court’s reasoning is typically not worth more than a passing reference. Consider two published opinions from the Courts of Appeal on the same day the article was published.
The Sixth Circuit examined whether an insurer had arbitrarily and capriciously denied long-term disability coverage. After citing mostly their own opinions, the Sixth Circuit tried to figure out what a 2008 Supreme Court opinion meant:
Guardian, after all, is both the payor of any long-term disability benefits and the administrator vested with discretion to determine his eligibility for those benefits. Indeed, such an inherent conflict of interest is “one factor” that must be considered when evaluating a plan administrator’s decision to deny benefits under ERISA. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S. Ct. 2343, 2351 (2008); Firestone Tire & Rubber Co. v. Burch, 552 U.S.101, 115 (1989). But there are many other factors a reviewing judge must consider as well. Glenn, 128 S. Ct. at 2351. In its opinion below, the district court acknowledged Guardian’s conflict of interest, but concluded, based on the record as a whole, that its decision to terminate Schwalm’s benefits was nevertheless supported by substantial evidence. The district court’s consideration of the inherent conflict of interest was proper.
The Supreme Court made clear in Glenn that such a conflict is a red flag that may trigger a somewhat more searching review of a plan administrator’s decision, but the arbitrary and capricious standard remains in place. Glenn, 128 S. Ct. at 2350.
In other words, the Supreme Court’s opinion in Glenn meant that a conflict of interest is “one factor” that “may trigger a somewhat more searching review.” Sure seems “fuzzy” and “unwieldy” to me — and apparently seemed that way to the Sixth Circuit, since they ignored it for the rest of the opinion.
The Eleventh Circuit tried to figure out the extent to which past bad behavior can be used to enhance a sentence for child pornography. To answer the question, the Court ignored the Supreme Court and looked solely to other Circuits:
The five circuits that have addressed this question have consistently concluded that the plain language of § 2G2.2(b)(5) does not place a time limit on past instances of sexual abuse or exploitation a court may consider in finding a pattern of activity. See United States v. Olfano, 503 F.3d 240, 243 (3d Cir. 2007) (involving convictions approximately 16 and 13 years old); United States v. Garner, 490 F.3d 739, 742-43 (9th Cir. 2007) (involving sexual abuse occurring “at least 35 years earlier”); United States v. Gawthrop, 310 F.3d 405, 412-14 (6th Cir. 2002) (involving an 11-year-old conviction); United States v. Woodward, 277 F.3d 87, 90-92 (1st Cir. 2002) (involving multiple convictions between 22 and 27 years old); United States v. Lovaas, 241 F.3d 900, 903-04 (7th Cir. 2001) (involving sexual abuse that occurred 26 years earlier).
First, Third, Sixth, Seventh, and Ninth Circuits — but no Supreme Court.
If you have a case in federal court, odds are that the holdings of the Supreme Court will generally dictate its course, the way a compass generally guides a sailor, but the reasoning of the Supreme Court won’t enter the picture. The specific direction of your case will be decided on the basis of your local Court of Appeal’s reasoning and how other District Courts in that Circuit have interpreted that reasoning; failing that, your case will likely be decided on the reasoning of other Circuit Courts, but not the Supreme Court.
That said, let’s play Devil’s Advocate.
The Supreme Court doesn’t decide appeals; that’s the Court of Appeals job. The Supreme Court picks and chooses its docket through the grant or denial or certiorari, and presumably chooses cases not because they’re easy but because they’re hard. Typically, the Supreme Court grants certiorari either where Courts of Appeal (and/or State Supreme Courts) have answered a single question in different ways or where a case raises an issue of national significance.
Consider Bruesewitz v. Wyeth. The Georgia Supreme Court came down one way on vaccine product liability preemption and the Third Circuit came down another. The question raised is neither obvious nor simple to answer; if it was, the courts would have both come to that same obvious and simple answer.
It wouldn’t be surprising if, in deciding Bruesewitz in a way that was meant to give guidance to other courts in future issues, the Supreme Court ended up with some abstract, obtuse reasoning. Some issues are just plain messy and prone to misinterpretation; if these questions were easy, we wouldn’t need all these levels of appeal to decide them.
But being the devil’s lawyer only gets us so far; there’s really no excuse for some of the gibberish that has come out of the court as of late. Prof. Arthur Miller is quite right that Twombly and Iqbal are “shadowy at best,” causing “confusion and disarray among judges and lawyers.” The Supreme Court took a long-standing, well-understood rule about complaints and apparently (at least this is what defense lawyers claim) reinterpreted it to allow courts to determine, at their subjective discretion, if allegations were “facts” or “conclusions” and if the “facts” were “plausible,” whatever that means — the Supreme Court didn’t bother to explain any further than that.
Maybe the problem has to do, as Liptak noted, with the increasing length of opinions or, as Judge Posner argued, with excessive delegation to inexperienced law clerks. I think the problem goes a bit deeper than that: some of the opinions are not based on principled legal reasoning but upon politics. It’s no surprise that cases decided on the basis of judicial activism don’t have the best reasoning underlying the holding — if appropriate legal reasoning had been used, they would have reached a different conclusion.
Unfortunately, there’s no easy cure for that. We just have to wait them out and pick better Justices next time.