Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.Oh, don't I know this! Trying to teach constitutional law cases to law students, I sometimes feel I need to defend myself from their hostility by stating the obvious: I didn't write these cases! Or: I'm really sorry but this happens to be the Supreme Court case on the subject.
A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It’s not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.
Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices.
Like me, Mazzone looks to the new Chief Justice to whip the Court's work product into shape:
My advice for Chief Justice John G. Roberts: double the number of cases the Court decides (it decided 123 the term Roberts clerked for Rehnquist), halve the length of opinions, make unanimity the goal, and discourage separate concurrences.Mazzone doesn't mention the other change in the offing and the effect it will have on the problems he describes. Justice O'Connor is leaving, and Justice O'Connor was frequently the one who insisted on carving out a middle path between two crisper opinions. Take away Justice O'Connor and replace her with someone who will commit to plainly stated doctrine, and you may not need all that much of the new Chief's charismatic powers to turn things around.
But will we be happy with the new set of problems that replaces the old? Hazy, blabby cases are a pain, but clear doctrine -- quite a shock after all these years -- might hurt a lot more. And it's going to hurt some of us a lot more than others, which explains the hand-wringing over the impending confirmation of Samuel Alito.