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Debating the Clarity of Supreme Court Opinions and the Role of Concurrences

Over at the Volokh Conspiracy last night, Orin Kerr posted a critique of Adam Liptak's critique of recent Supreme Court opinions. Right off the bat, I think it's hard to argue with Kerr's conclusion that, as in all aspects of life, there will always be whiners:

No matter what Supreme Court opinions look like, there will always be someone who criticizes them for not being clear enough. If an opinion is long, the criticism will be that the opinion has too much discussion that leaves the meaning of the decision uncertain. If an opinion is short, the criticism becomes that the opinion does not provide enough explanation and therefore leaves its meaning uncertain. If an opinion is based on a narrow ground, the criticism will be that it does not resolve enough to really clarify the law. On the other hand, if the opinion is broad, the criticism becomes that it resolves so much at once that it creates more questions than it answers and leaves the law muddied. (If an opinion manages to be of exactly average length and scope, then the criticism becomes that the opinion is too bland.)

When I was practicing in New York, I was often heard thanking some higher power or another for how mercifully short most opinions were that came out of the Appellate Division. Until, of course, I came across a case that stated the rule I thought I needed, but was completely devoid of any factual background information that might have aided in crafting persuasive arguments for my clients. So, yeah, short is sometimes bad, long is sometimes bad, and you can't please all of the people all of the time.

Kerr also takes Liptak to task for his musing on the role of concurrences.  While Liptak says (in fairness, based largely on the quotes of others) that the increasing number of concurring opinions, including those in cases decided unanimously, tends to add a layer of confusion to the interpretation of the opinions, Kerr disagrees. And I, like several of the commenters on the Volokh post, think Kerr's money quote is dead on:

In my experience, judges and lawyers in the lower courts know exactly what to do with concurrences in Supreme Court opinions that don’t provide the crucial vote. For the most part they just ignore them, unless the concurrences happen to have some language that the lawyer or judge needs to support the argument they’re making anyway.

I've seen junior attorneys cite to concurrences as the primary -- or even the sole -- authority for certain propositions in memos and draft briefs, and it made me shudder. That's just not how things are done. I can tell you from a clerk's perspective that, if the only thing a party can come up with to support its position is a concurring opinion, he's starting out in a hole.

Then again, I haven't read the book on concurrences and their significance.


Until, of course, I come across a case that states the rule I think I need, but is completely devoid of any factual background information that might aid in crafting persuasive arguments for my clients.

Posted by Eric Lipman on November 18, 2010 at 01:15 PM | Permalink | Comments (2)


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