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Bad logic

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Okay, I have an admission to make. I read Supreme Court opinions for fun.

At least, I did until recently. You see, until recently, Supreme Court opinions tended to be some of the finest examples of pure reasoning available. The best ones - and there were always one or two per case, usually in the majority - would lay out the facts, examine law and precedent, and by pure force of logic reach an inevitable conclusion. You might not like the conclusion - sometimes the writer of the opinion didn't - but if you wanted it changed, it was very clear that it was the law that had to change, or perhaps the Constitution, because there was no arguing with how the decision followed from the law.

What was the most fun was when you had some of best writers on opposite sides of a case - as when O'Conner dissented from the sentencing guidelines case, or when Rehnquist and Scalia were on opposite sides in Hamdan. With expert logicians on both sides and everyone taking extra care to make their writing as persuasive as possible, the smallest logical fallacies were seen in high relief, and it became obvious when a justice was allowing his preconceptions color his opinions.

With the loss of Rehnquist and O'Conner, though, the quality of the opinions has been sliding. Scalia, formerly one of the more meticulous writers, has been getting sloppy. Most of the other judges no longer bother to include a summary of the facts of the case, making the logic more difficult to follow. Worse, when you do get the facts, say from a well written lower court opinion, it's clear that the logic is sloppier as well, perhaps because the justices are relying on memory rather than actually going through and laying out the facts in writing.

The bad thing is, this actually has practical consequences. When the opinions were clear and understandable, the lower courts had a better basis for making their own decisions. Even if a case came up that wasn't exactly the same as one that had been argued in the Supreme Court, it was often clear how the Supreme Court's logic would apply to that different case. This helped keep the rules uniform between the various court circuits and districts, and reduced the need for appeals.

With majority opinions getting sloppier, even turgid at times, the lower courts will have less guidance. There will be more temptation for them to insert their own political views into their decisions. Indeed, they may find themselves in the position of having to make law rather than interpreting it - not because they want to, but because there just isn't enough guidance to do a good job of interpretation.
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On April 13th, 2007 05:32 pm (UTC), treptoplax commented:
I like Supreme court oral arguments - when I happen across the transcripts from one it's almost always comedy gold.

I'd seen discussion elsewhere that Roberts dislikes narrow decisions - possibly this may mean that some opinions are more muddy because they're being written to a least-common-denominator in order to achieve a 6-3 or 7-2 vote instead of 5-4. I'd be curious if the sloppier opinions you're seeing are in fact large majority opinions...
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On April 13th, 2007 06:11 pm (UTC), psychohist replied:
I enjoy the oral arguments, too. I first got interested in this two decades ago when there was a case where a town in Florida had passed a law requiring a license for killing any animal prior to eating it, a law which had only been used against a church which sacrificed chickens then feasted on them as part of their religious rituals, and which had been passed after the church was established. In order to ascertain whether the law's purpose was actually purely secular, Sandra Day O'Conner asked something like, "hypothetically, if someone were to kill a live lobster by throwing it into a pot of boiling water, would you enforce the law against them?"

Both narrow and broad majority opinions seem to be sloppier; the only ones that are still sometimes sharp are solo dissents, and not even all of those. I do think Roberts' pushing for broader opinions may exacerbate the issue - if he asks for everyone who agrees on the result to sign a joint opinion, that opinion is going to be unclear if the people signing it have different reasons for reaching those results.

Theoretically, his approach makes some sense a 9-0 opinion ought to be less vulnerable to change than a 5-4 opinion, since more judges would have to switch sides. In practice, the opinions end up revealing so little about the thought processes behind the decisions that I think unpredictable 5 justice switches may actually be more common than unpredictable 1 justice switches under the Rehnquist court. Opinions under the Rehnquist court were so clear that individual judges' votes tended to be quite predictable.

Then again, I've kind of been anti-Roberts from the start, so maybe someone who is more pro-Roberts should have a say here.
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On April 13th, 2007 08:29 pm (UTC), enugent replied:
Actually, I like Roberts' opinions (in style, if not in substance). And I haven't heard that he's pushing for broader opinions - just the opposite. He's pushing for cases to be narrowly decided so that more justices will sign on to the majority.

You probably read more Supreme Court opinions than I do, though - it's hard to find time any more. Fortunately for you, there are 200 years of older ones to go through before you run out, even if you don't enjoy the modern ones. You'd probably enjoy Holmes quite a bit.
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On April 14th, 2007 11:16 pm (UTC), psychohist replied:
I think you're talking about the narrowness or broadness of the opinion, whereas Mike and I are talking about the narrowness or broadness of the majority. Roberts seems to like broad majorities. I think Mike is using "narrow decision" in the colloquial sense of "majority having a narrow edge over the minority", rather than in the legal sense of "addressing as few issues as possible".

For what it's worth, I think Roberts has been less successful in getting decisions made on narrow grounds than the Rehnquist court has - there haven't been any cases like the one where the court decided that the noncustodial parent didn't have standing to sue over the child's first amendment rights.
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On April 13th, 2007 08:30 pm (UTC), enugent replied:
Oh, and FTR, it's "O'Connor," not "O'Conner."

And just in case you didn't know, full oral argument transcripts are now available on the day of argument. The transcript for KSR v. Teleflex was pretty funny, even if it was bad news for us patent lawyers.
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On April 14th, 2007 11:20 pm (UTC), psychohist replied:
O'Connor - argh, I actually knew that but didn't think about the typing when writing the post.

I'm afraid that transcript was hard to understand for me - the petitioner's statement especially, perhaps because I didn't know the background of the case and was trying to figure out which side he was on - though the government lawyer's statement was pretty clear.

Scalia's comment about "patent lawyers are paid to get patent applications approved, not to get them denied" was pretty funny in context.
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On April 17th, 2007 12:02 am (UTC), enugent replied:
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On April 25th, 2007 09:09 pm (UTC), enugent replied:
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On April 26th, 2007 03:12 pm (UTC), psychohist replied:
Seems pretty clear to me.

The column says it's a "nebulous test", but it strikes me that O'Connor is just asking the district courts to look at the evidence in each specific case, which seems appropriate.
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On April 26th, 2007 05:32 pm (UTC), enugent replied:
I agree that O'Connor is being very reasonable here. But I'm not sure the column is so much saying that this particular test is terribly nebulous (although it's not a bright-line rule), but that O'Connor is notorious for creating murky tests for district courts. Personally, I happen to think that that's appropriate in many cases, but it certainly is a common criticism of her jurisprudence.

(Incidentally, you may be interested in keeping an eye on that blog, if you wouldn't mind branching out into appellate court decisions. They report a lot of interesting cases.)
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