392. "Deciding a case"

One of the real problems of being a lawyer is that, if you're not careful, you might begin to think that legal categories are meaningful outside of the artificial world of the courtroom.

For example, the New York Times recently ran an article on the number of "cases" decided by the Supreme Court.  Left unexamined was the assumption on which the article rested: that "deciding a case" is a fixed and meaningful category, and therefore a rational way to analyze the court's output.

But it's not.  Here's one way of demonstrating why not.  As lawyers know, the Supreme Court's official reporter is called United States Reports.  It's the only bound collection of judicial opinions published by the federal government. 

Volume 150 of the United States Reports appeared in 1893, 106 years after the Constitution was ratified.  The Court then hit a steady pace, requiring 44 years to hit volume 300 (1937) and exactly the same number of years to reach volume 450 (1981). 

But in the succeeding 25 years, 97 new volumes were churned out.  The most recent bound volume is number 547, covering what the court insists on calling its 2005 term, although most of the opinions from that term appeared in 2006.  If that pace is maintained, the current 44-year period will produce 171 volumes, an increase of 21 volumes from the previous two 44-year periods.  That's an increase of 14%.

But while the pace of new volumes has increased by 14% since 1981, the number of "cases" decided has plummeted by half, as the Times' graphic shows.  That implies that the average length of each opinion has more than doubled.

Now, I recognize that "volume" is an imprecise measurement of output, since the size of volumes varies.  But while it's an imprecise measurement, I think it's a valid one, because the variation is within certain broad limits, and those broad limits are enough when you're talking about such a huge different.  If the number of pages increased by 50% rather than over 100%, the point would be unchanged.

Besides, anybody who follows the court already knows it's true: the court's opinions today are on average longer - much longer - than the opinions of a hundred years ago.  Just looking at the final opinions from last June, we find one clocking in at 89 pages.  Here's 93 pages.  Going back two years we find one that topped 150 pages.

It seems self-evident that such opinions aren't a record of the justices "deciding cases" - resolving a legal dispute between two parties.  It wouldn't be possible to fill up 150 printed pages with a discussion of a case already resolved by a succession of lower judges except by resorting to the technique employed by Jack Nicholson's The Shining character. 

The enormous length of modern opinions means the justices aren't writing about the particular case.  They aren't "deciding cases."

Common law courts have always made new law.  Elected politicians who try to score points by pretending to believe the opposite are only eroding their own power by promoting the same idealized vision of the judiciary that judges themselves use to poach on the domains of the democratic branches. 

So my point isn't that the Supreme Court is making law. It's never done anything else.  Rather, my point is that the modern court makes law in a much different way than previously.  It maintains only the outward forms of the old way, complete with case caption and so on.

Originally the common law system worked unconsciously, so to speak, with judges deciding individual cases until a sufficient number were decided that unifying abstract principles could usefully be drawn from them.  When I was teaching paralegal studies I would illustrate this by asking the students:

• If all you know about a legal problem was that 17 judges, after hearing from 17 sets of lawyers, said the answer was "yes," while only 3 judges, after hearing from 3 additional sets of lawyers, said "no" - if that was the only thing you knew - which answer do you think is more likely to be the better one?

• Also, given that 20 judges had reached their decisions after hearing from 40 lawyers, how likely is it that another triad of lawyers/judge will think of anything that hasn't already been considered?

That doesn't mean the 17 judges are necessarily right, or that the 61st head would never think of something overlooked by the previous 60, but the probabilities are pretty clear.  That was how the common law system worked.  It was law derived from experience.

(BTW, I think that was what Holmes meant with his famous apothegm "The life of the law has not been logic; it has been experience."  But it was entirely typical of his style that the sentence seems so brilliantly clear on first hearing, and progressively less clear on each repetition.  He had a knack for what might be called disguised obscurity.)

The increased length of the Supreme Court's recent decisions means that it's doing something different from what the common law courts did.  It's not deciding cases and then retrospectively abstracting doctrine from the decisions.  It's doing the opposite: announcing new abstract doctrine and then applying it (increasingly in a slapdash, perfunctory way) to the particular case that provided the excuse for announcing the doctrine.

The Supreme Court's opinions have become so long because the court isn't deciding cases at all.  The Times' mistake was to assume that the phrase "deciding cases" had some fixed meaning that could be used to compare the Supreme Court of today with that of 20 or 30 years ago.  It doesn't.