A Really Crazy Proposal

by Ed Whelan

I’ve come to expect loopy ideas from many legal academics, but sometimes even I am surprised by how daffy they can get.

According to this BLT post by Tony Mauro, law professor (and UC Irvine law school dean) Erwin Chemerinsky, in a recent keynote speech at a law-school symposium,

said the Court owes litigants as well as the public some explanation why it has denied review in pending petitions. The “vast majority” of petitioners, even some that pose a circuit conflict, are denied review without learning why. That, he said, is an “extremely important failure to communicate.”

According to its website, the Supreme Court has “more than 10,000 cases on the docket per Term.” For some recent terms, I’ve run across somewhat lower numbers, in the 8,000s. Whichever number of total cases is more accurate, somewhere between 98% and 99% of that total consists of denials of review. There would not be enough time in the year for the Court to offer “some explanation why it has denied review” in those cases (beyond, of course, the elementary fact that the petition did not receive grant votes from at least four justices). In the overwhelming majority of cases, the justices don’t tell each other anything beyond their vote to deny. Further, various justices will often have very different reasons for voting to deny review. So the idea that they should find it worth their while to collaborate to generate “some explanation” is really bizarre. I’d much rather they spend more time on the cases they decide on the merits.

Nearly as bad is Chemerinsky’s idea that “the Court should hire a ‘clear writer’ who would boil each decision down to a single paragraph that would be released along with the ruling.” I don’t doubt that the author of the majority opinion could often do a better job setting forth clearly what the holding of the case is. But why should the justices delegate to a Court staffer the often difficult and controversial task of summarizing the ruling in a single short paragraph?

Update: I’ve added the last five words of the last sentence above (which I thought were already clearly implicit in what I wrote) in response to this blogger, who contends that I must be unfamiliar with the role played by the Court’s reporter of decisions, who drafts the very long syllabi that Chemerinsky complains of. (The practice when I was a clerk is that the authoring justice would review and revise the syllabus; I trust it remains that way.) It’s one thing to provide an extended syllabus that closely tracks the majority opinion; it’s a much more difficult task to provide a very short summary that is satisfactory. (The blogger has graciously added his own corrective update.)

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