PUBLIC UNDERSTANDING OF SUPREME COURT OPINIONS

When interpreting the Constitution, Justices of the Supreme Court—whether writing a majority, concurring, or dissenting opinion—should seek to reach the American people as their primary audience. They should explain with candor, in accessible and comprehensible language, what they decided, and why they decided it in that way.

That the Constitution be intelligible to the American people is essential to a government based on informed consent and open to informed dissent. The preamble to the Constitution proclaims that "We the People [not only "We Constitutional Lawyers and Teachers of Constitutional Law"], in Order to … establish Justice, … and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

In 1819, Chief Justice john marshall wrote for and to a unanimous Supreme Court in mcculloch v. maryland (1819) that, individually and collectively, "we must never forget that it is a Constitution that we are expounding"; that the Constitution derives its whole authority from the people of the nation; and that, in form and language, it is an instrument designed to be accessible and comprehensible to the public. The Constitution ought not to be converted by Court interpretations into, or be treated like, an intricate legal code detailing all of its great powers and all of the means by which they may be carried out. A Constitution, so converted, could "scarcely be embraced by the human mind" and, Marshall added, "probably would never be understood by the public."

Marshall stressed that "[s]uch is the character of human language that no word conveys to the mind, in all situations, one single definite idea." The burden of an opinion is to remove obstacles to understanding when a controversy arises between or among the governors and the governed about the Constitution's meaning. To say that is not meant to obscure the fact that the language of opinions may be no more free from ambiguity than the language of the constitutional provision being interpreted. Nevertheless, the Court's task is to clarify—to make something about the Constitution more fully understood than it was before the opinion was rendered—by explaining and giving reasons for its judgment in a concrete case.

Yet conscious ambiguity, confusion, and alteration of apparently critical facts have characterized opinions in many of the Court's most important decisions, such as those in brown v. board of education (1954), cooper v. aaron (1958), regents of university of californiav. bakke (1978), and webster v. reproductive health services (1989). Some Justices have been candid about the intentional muddling or misstatement of opinions.

Justice robert h. jackson once observed that "[t]he technique of the dissenter often is to exaggerate the holding of the Court beyond the meaning of the majority and then to blast away at the excess," leaving a reader in doubt about "whether the majority opinion meant what it seemed to say or what the minority said it meant."

Chief Justice charles evans hughes is reported to have admitted that "he tried to write his opinions clearly and logically, but if he needed the fifth vote of a colleague who insisted on putting in a paragraph that did not 'belong,' in it went, and let the law reviews figure out what it meant."

An opposing view, explained by Professor Burke Marshall, is that the Court has left to the legal profession and to legal scholars the task of "explain[ing] the obscure,… [of] construct[ing] for our students and for the people generally what it is that the Court surely meant, when the Court itself does not say what it meant." Those who hold this belief tend not to address whether this reality should be the goal of opinion writing, or whether it is simply the inevitable, albeit regrettable, product of the Court's work.

According to Professor Marshall, "Familiarity with the Court's work overwhelmingly demonstrates at a minimum that the members of the Court view their work as directed at the elite, and not to the people." But this should not lead anyone to conclude that the Justices should leave to the "experts" the task of instructing "We the People," effectively drawing a line—whether consciously or unconsciously—between the elite, those who are "in," and the rest of the people, those who are "out." Even the professional interpreters to whom the people must turn for understanding may not be able to unravel what the Court has to say, often in heavily footnoted, multiple opinions. The "experts" and even the Justices themselves, for example, may not be able to identify the constitutional principles underlying the decision in Webster. Its confusing, seventy-four-page set of opinions, which left unresolved the meaning of the trimester framework fashioned in roe v. wade (1973) for determining the constitutionality of laws permitting abortion, is introduced by this mind-boggling headnote:

REHNQUIST, C.J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part II-C, the opinion of the Court with respect to Parts I, II-A, and II-B, in which WHITE, O'CONNOR, SCALIA and KENNEDY, J.J., joined, and an opinion with respect to Parts II-D and III, in which WHITE and KENNEDY, J.J., joined. O'CONNOR, J., … and SCALIA, J., … filed opinions concurring in part and concurring in the judgment. BLACKMUN, J., filed an opinion concurring in part and dissenting in part.

Joseph Goldstein
(2000)

Bibliography

Goldstein, Joseph 1992 The Intelligible Constitution: The Supreme Court's Obligation to Maintain the Constitution as Something We The People Can Understand. New York: Oxford University Press.

Jackson, Robert H. 1955 The Supreme Court in the American System of Government. Cambridge, Mass.: Harvard University Press.

Rehnquist, William H. 1987 The Supreme Court: How It Was, How It Is. New York: Morrow.

Vining, Joseph 1986 The Authoritative and the Authoritarian. Chicago: University of Chicago Press.

White, James Boyd 1984 When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community. Chicago: University of Chicago Press.