A Failure to Communicate
Chemerinsky, Erwin, Brigham Young University Law Review
On Tuesday night, December 12, 2000, at about 10:00 p.m. eastern time, the Supreme Court released its decision in Bush v. Gore} We all vividly remember the image of reporters standing outside the Supreme Court rumbling with copies of the opinion and trying to figure it out while speaking. Some got it badly wrong. In hindsight, it was a monumental failure to communicate by the Court. The public learned that night that the Court had ruled in favor of Bush, but there was not a clear explanation of why. This helped to fuel, though certainly was not entirely responsible for, the sense that the Court decided the outcome of the presidential election on a partisan basis.
Bush v. Gore, of course, is an extreme and obvious example of the Court failing to communicate effectively with the American people. Yet in a sense, history repeated itself in June 2012, when CNN and Fox News initially reported that the Supreme Court had declared unconstitutional the individual mandate in the Patient Protection and Affordable Care Act.2 This was arguably the most anticipated, and perhaps the most important, Supreme Court decision since Bush v. Gore, and two major media outlets got it wrong and misinformed the American public.3
Although these errors in reporting are not typical and the press certainly deserves a great deal of the blame for hasty and inaccurate reporting, they reflect a larger problem. The United States Supreme Court has a serious failure in communicating with the American public.
In explaining this, I want to make three points. First, I want to describe why I believe that effective, clear communication by the Supreme Court is so important for the law and for society. Second, I want to identify ways in which the Supreme Court fails to communicate effectively. Finally, I want to offer some suggestions to improve the Court's communications.
I. THE IMPORTANCE OF EFFECTIVE COMMUNICATION BY THE SUPREME COURT
A starting point in discussing communication by the Supreme Court is to ask, why does it write opinions at all? Neither legislatures nor executives are required to give reasons for their decisions, though reasons are often given. But the expectation is that when the Supreme Court decides a case, there will be a written opinion explaining the rationale. A written opinion serves many functions.4
A judicial opinion provides an explanation to the parties and their attorneys as to why a court came to its conclusion. Perhaps this is less important at the Supreme Court, but judicial opinions at all levels of courts are a way in which judges make it seem that their rulings are not arbitrary and they tell the parties why they won or lost. A large percentage of opinions issued by lower courts are not published and therefore exist solely to explain the rationale for the decisions to the litigants. Judicial opinions are also thought to improve decision making. The need to write out a rationale requires more careful thought than simply announcing a result; there may be instances in which judges change their minds when they try to write out an explanation for their decisions. Also, written opinions increase the legitimacy of a court's decisions for both the litigants and society; the result seems less arbitrary when reasons are given for it. For the Supreme Court, and for appellate courts more generally, written opinions provide guidance for lower courts and for government officials who must adhere to the decisions. In a common-law system, where precedent is given weight, written opinions facilitate this; it is hard to imagine stare decisis without written opinions.5
It is possible, then, to identify many audiences for Supreme Court decisions. The effectiveness of the Court's communication can be assessed relative to each of these audiences.
One audience, of course, is the parties. In a criminal case, an opinion for the government explains to a person why he or she will be imprisoned or even executed. In a civil case, an opinion explains why people win or lose money or whether their interests are protected by the Constitution. …