We recommend a recent article in the on-line publication Law360, Brian Mahoney, Posner Says Justices Should Cut BS From Opinions, July 10, 2013, reporting Judge Posner’s blunt and candid assessment of recent SCOTUS opinions as unnecessarily long, verbose and unclear. We hope you read it, but such criticism is hardly news, although as far as we know, until now no one of Judge Posner’s stature has accused the Magnificent Nine of producing “bullshit” — in haec verba — in the pages of a law journal.* Click here.
Nonetheless, even without using this bit of invective, SCOTUS has been the subject of scathing, and deserved criticism before. We commend to your attention an article by the late Professor Paul Bator, entitled What Is Wrong With the Supreme Court? 51 U. Pitt. L. Rev. 673 (1990). A good read, that.
Although the late Professor Bator, a Harvard and University of Chicago law prof, was fully credentialed to write on this subject, this article has a special, noteworthy feature. Professor Bator died before completing it, and it was finished by Prof. Charles Fried of Harvard, former U.S. Solicitor General and Justice of the Massachusetts Supreme Court.
Professor Bator’s enduring point was that SCOTUS should be less solicitous of government arguments and should be producing a “product” for the consumers of its output; i.e., opinions that are understandable and capable of ready application by lawyers and busy trial judges. But the court often doesn’t do that, and — since this blog is primarily about eminent domain and inverse condemnation — that field of law is a proverbial “Exhibit A” for what’s wrong. When SCOTUS proclaims itself to be simply unable to state what constitutes a cause of action in inverse condemnation, and tells us that it decides that on an ad hoc factual basis in each case (as it confessed in the Penn Central case), that is but another way of saying that though it demands of lawyers that they draft doctrinally meritorious pleadings, it is “simply unable” to say what those pleadings should contain.
As Professor Bator put it, “. . . all too often, when the Supreme Court decides a case, instability, uncertainty and confusion are not alleviated, but rather reinforced.” Id. at 686.
_____________________________________
* If you are interested in a Princeton scholar’s reflections on the proper use of the word “bullshit,” check out the book by Prof. Harry G. Frankfurt, entitled On Bullshit. Last time we looked, it was available on Amazon.