On the front page of today’s New York Times, Adam Liptak has a long (2,400-word), occasionally confusing article, about long, occasionally confusing Supreme Court opinions. There is much food for thought in the article, and the Roberts Court does not come off well, on just about any score. The gist of the piece, supported by various scholarly studies and selected sources in the legal community, is that today’s Supreme Court is responsible for opinions that are a) too long, b) too often substantially written, it seems, by young clerks rather than by the justices themselves, c) frequently “opaque” in meaning when not merely turgid and clunky, and as a consequence of all the above, d) often practical failures when it comes to guiding the decisions of lower courts and the advice of counsel. The problems arise, moreover, not just in divided rulings but even in some of the unanimous ones.
Much of this indictment rings true, especially the obvious facts of length and godawful writing in too many Supreme Court opinions. But this is a problem that pervades the legal culture today; just check out the length and godawfulness of the typical law review article nowadays.
But there is one respect in which Liptak does not connect the dots. I call it the Kennedy Effect. In the online version of Liptak’s article, there are exactly nine Supreme Court decisions hyperlinked as examples supporting the thesis that “the court often provides only limited or ambiguous guidance to lower courts.” Nine cases, that is, dating from February 2007 to June 2010. During the four terms of the Court in question, there were considerably more than 300 cases decided by published opinions, so this isn’t much of a data set. But let that go. Let’s take it as read that there is a real problem of “ambiguous guidance” from the Court, and that the nine cases adduced by Liptak are emblematic of the problem.
Six of the nine cases were 5-4 rulings in which Justice Kennedy was in the majority. (The other three cases were either 7-2, or unanimous, and are mentioned by Liptak to show that close division is not in itself the only cause of incoherence.) In four of those six cases Kennedy wrote (or at least signed) the opinion for the majority, and can be held directly responsible for any confusion that resulted–and he is the only justice who is responsible for writing more than one of the nine cases. In one of the other cases–Parents Involved v. Seattle School District No. 1 (2007)–Chief Justice Roberts wrote the main opinion, but Justice Kennedy was explicitly responsible for the head-scratching that followed, because he wrote a concurrence and denied a fifth vote to a major portion of Roberts’ opinion, leaving the chief to speak only for a plurality, and leaving readers to puzzle over just what to take away as a ratio decidendi. And in the sixth case, Philip Morris v. Williams (2007), while Kennedy wrote no opinion, we might plausibly advance the notion that the price of his vote as the fifth justice was to muddy the waters of legal reasoning in Justice Breyer’s opinion for the Court. But even if we leave out that case, a majority of five of Liptak’s nine incoherent cases can be accounted for by Kennedy’s control of the production of reasons.
Like former Justice O’Connor before him, Justice Kennedy likes very much being the “decider,” and like Justice O’Connor, he seems opposed by temperament and inclination to supplying legal clarity. Incoherence guarantees him return business, after all. Heaven forbid anyone should attain clarity on the meaning of momentous legal questions. Then we might not need him so much.