It used to be said by old-time liberals, before the days of political correctness, that constitutional rights of all must be respected because if you deny them to some, you’ll eventually wind up denying them to others. Few things demonstrate the soundness of that concern better than a recent lengthy, front-page article in the New York Times (Adam Liptak, Justices Long on Words but Short on Guidance, Nov. 18, 2010 at p.A1). In it, Liptak makes the point that recent Supreme Court opinions on important subjects have grown long, and they tend to hedge and equivocate to such an extent that lower court judges are unable to interpret them in a straightforward fashion and are frustrated by their “marked lack of clarity” as one federal judge quoted in the Times article put it.
This is an unfortunate state of affairs, but it isn’t news. Those of us who have had the misfortune of working in the field of eminent domain and inverse condemnation, know all about this process. As the late Professor Arvo Van Alstyne, California’s leading expert on government liability, put it over 40 years ago: takings jurisprudence is “…a mass of obtuse decisional law that is only occasionally relieved by judicial common sense, pragmatism and candor.” The late California Court of Appeal Justice Roy Gustafson noted at the time, the law of eminent domain is a “hopeless mess.” Etc., etc. The late Professor Paul Bator, devoted an entire article to the depressing subject of the Supreme Court’s general lack of clarity, aptly entitled What Is Wrong With the Supreme Court? (51 U. Pitt. L. Rev. 673 (1990). Professor Bator’s still valid point was that the court was disregarding its true “customers” — litigants, their lawyers and the lower courts — who need rules to live by and doctrinal guidance in order to resolve disputes efficiently, but instead get vague multiple-factor tests that make litigation costly and its outcomes uncertain. So in creating the chaos that the Supreme Court has been creating in the law that governs other areas, it has only been following the same old beaten path of takings law.
Liptak notes that the Justices are unwilling to make clear, definitive decisions because they fear that they may have to live with them and have to apply them in future cases where they may lead to results that are not judicially favored. But in reality, it is these long, vague opinions that are the culprit because they provide more opportunities for judicial error and ambiguity, and increase the lack of clarity that then inspires more confusion in later cases.
And of course, a major problem that contributes to this situation is the Justices’ excessive reliance on the efforts of inexperienced and ideologically besotted clerks, whose recommendation whether to grant or deny certiorari, and their production of these lengthy, confusing court opinions, that go on for pages on end, is often the culprit. Prime example: Justice Brennan’s reference in his clerk-drafted opinion in Penn Central Transportation Co. v. City of New York, to “investment backed expectations” whose frustration may (or may not) give rise to inverse condemnation liability.