Document Type

Article

Publication Date

2022

Abstract

Although the individual Justices of the Supreme Court frequently speak to the public, the Court as an entity holds fast to the purportedly ancient principle that courts should speak only through their official written opinions—the meaning of which is for others to figure out. Over the years, the Court’s decisions have become more complex, prolix, and fractured, making it difficult and time-consuming for anyone outside the professional elites to determine what the Court has held. Even journalists, who attempt to explain the Court’s decisions to the public, struggle to make sense of the Justices’ opinions under the pressures generated by new demands for instant news. As a result, the Court’s interpretations of the Constitution remain shrouded in mystery and beyond the ken of many. The Court’s approach is hard to square with its own teaching on the importance of an informed public to a democratic government, let alone with the Court’s central obligation to expound the Constitution in a way that is intelligible to the people.

We therefore argue that the Court’s communication practices are both unjustified and self-defeating. The underlying principle—that courts speak only through their written opinions—has never been categorically true. The early Court did not deliver written opinions at all, and Justices from the time of John Marshall have offered out-of-court defenses of their decisions. Some Justices have indeed recognized that the Court suffers when it fails to help the media understand and disseminate its decisions. But the Court has insistently maintained its aloofness. It has shown little concern for the changing needs of the press, and it has steadfastly rejected any suggestion that it should make its work more accessible to the people. Meanwhile, the constitutional courts of other countries—including Canada, Germany, and Israel—have risen to the challenge. These courts have adopted innovative procedures, such as press “lock-ups” and plain language opinion summaries, to ensure that their decisions are more intelligible, and they have not suffered the loss of dignity or respect that the Supreme Court apparently fears. These trends reflect a growing understanding that the legitimacy of constitutional courts depends on their ability to make their decisions comprehensible to other participants in the political process—the executive, the legislature, and especially the people. Our Supreme Court is not immune from the realities to which other constitutional courts have responded, and, like them, it must find a way to make its decisions more easily reported and better understood.

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