an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What the Upcoming Dissents in McCutcheon v. FEC Should Say
Gerard N. Magliocca
I've long believed that judicial opinions are too long. When you compare the Supreme Court's current output to the average ruling from fifty or sixty years ago, the obesity of modern decisions is obvious. This Term the Justices will decide a major campaign finance regulation case (McCutcheon v. FEC), and there is a 99% chance that the majority that decided Citizens United will extend that precedent. Moreover, many of the dissenters in Citizens United will state at tremendous length why they object.
By contrast, look at how Justice Holmes dealt with this sort of problem in Washington v. W.C. Dawson & Co., an admiralty case from 1924. Here is his entire dissenting opinion:
"The reasoning of South Pacific Co. v. Jensen and cases following it, never has satisfied me and therefore I should have been glad to see a limit set to the principle. But I must leave it to those who think the principle right to say how far it extends."
Various 19th Century opinions were pretty long. Dissents had some length in various cases too. Justice Field's dissent in the Slaughterhouse Cases wasn't particularly short. And, they didn't have law clerks or word processing!
Holmes is a bit of a cheat example -- he was known for brevity. His dissent in Lochner was much shorter than Harlan's.
By 1900 or so, the Court was issuing many more opinions than it does today. It's hard to know if the opinions were shorter because of the workload, or if the workload enforced brevity. And Joe's right: there were plenty of very long opinions.
I've heard that at least one federal judge has cited a SCOTUS dissent in her decision (which was in line with the dissent). If so, then writing the dissent like a full opinion would be useful for the dissidents.
And, of course, Scalia alone might make up most of the increase :)
(1) That dissent is pretty unsatisfactory really. Some Holmes critics note his brevity too often lead to opaqueness.
(2) By my admittedly amateur reading of things, the Roberts Court in general have put forth shorter opinions on average than those in the Burger Court, let's say. There are exceptions, of course, but on average.
I was thinking that language from McReynolds’ dissent in Klesner (“But the words of the enactment, which we must accept as deliberately chosen, give no such power; and I think this court ought not to interject what it can only suppose the lawmakers would have inserted if they had thought long enough”) provide a pretty good reason for rejecting the government’s position in the Obamacare subsidy case. (http://balkin.blogspot.com/2013/12/how-congress-works-and-obamacare.html)