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

By Eric Lipman

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...

Full post as published by Legal Blog Watch on November 18, 2010 (boomark / email).