So, what did you think of the health-care opinion? I don't mean
the barrage of media commentary, but the Supreme Court's actual
opinion: all 187 pages, more than 59,000 words -- including
concurrences, dissents and footnotes. Did you read it?
Most Americans don't have the time, legal training or interest to
parse the court's long, complex and technical opinions. That's a
problem. There is no substitute for learning, directly from the
source, about how the justices came to their decisions.
Sure, there's an abundance of commentary, some of which is
actually fair and balanced. But no commentator is infallible, and
partisanship can insert itself into even the most routine reporting.
And sometimes, the rush to report the news first can lead to sheer
Furthermore, the average American's inability to understand the
justices' decisions detracts from the court's transparency and
We expect accessible explanations from our elected officials,
after all. Although the products of legislative and executive action
-- statutes, regulations, executive orders, etc. -- can also be
long, complex and technical, those responsible for enacting and
executing them must explain to we, the people, what they're up to.
And they're expected to do so in plain English, whether through
White House addresses, statements on the floor of Congress, or their
websites and other forms of electronic communication.
When it comes to the Supreme Court, however, there are no public
addresses or even televised proceedings. The justices' written
opinions are the only explanation of how they exercise their power,
which affects nearly every facet of American life. Yet, for most
Americans, these opinions are neither accessible nor comprehensible.
First, there is the issue of length. As Adam Liptak has noted in
The New York Times, Supreme Court opinions are only getting longer.
While the median length of decisions was around 2,000 words in the
1950s, that figure had surged to 8,265 words by 2010. The monumental
Citizens United v. Federal Election Commission opinion, for example,
weighs in at 176 pages, or about 57,000 words.
But length is not the only problem. There's also complexity.
Consider the following passage from the health-care opinion:
"Section 6201(a) authorizes the Secretary to make 'assessments of
all taxes (including interest, additional amounts, additions to the
tax, and assessable penalties).' Amicus contends that the penalty
must be a tax, because it is an assessable penalty and ?6201(a) says
that taxes include assessable penalties.
"That argument has force only if ? …