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Barrett’s caution to ‘read the opinions’ puzzles those who do

As the court prepares to release some of the most consequential rulings of the term, whether the American public will understand those judgments is up for debate.

WASHINGTON (CN) — Justice Amy Coney Barrett catalyzed a debate this week on legal elitism with advice for Americans who struggle to understand the reasoning behind the Supreme Court’s decisions. 

“I would urge all engaged and interested Americans to read the opinions,” Barrett said at the Ronald Reagan Presidential Library on Monday, referring to some of the more divisive cases that the court takes on.

Barrett said the decisions themselves offer insight and that she personally tries to write opinions “in a manner that would be accessible to inform Americans.” 

But experts argue the high court’s opinions are the opposite of accessible. 

“One wonders what most Americans would take away from reading the opinions,” Barry Sullivan, a law professor at Loyola University Chicago, said in a phone call. “The opinions tend to be very long, very complicated for a number of reasons. … I think most Americans would have a very hard time understanding where the justices are coming from.” 

Even if the public were able to parse the complex legal jargon in a given opinion, the decisions often draw on years-old precedent requiring additional context. 

“It's not enough to read an opinion,” Ramon Feldbrin, an E. David Fischman Fellow at the University of Chicago Law School, said in a phone call.

“In order to understand the current opinion of the court,” he continued, ”you need to have read previous decisions. You need to know what are the precedents. Usually, without that background, you can't really understand the current ruling, which makes it much more complicated, much more time consuming, and really brings it far from the reach of ordinary people and I would say even most journalists today.” 

Sullivan and Feldbrin authored an article published in the University of Pennsylvania Journal of Constitutional Law on how the court communicates its decisions to the public. The article argues that the court’s communications methods — which focus solely on official written opinions — are unjustified and self-defeating.  

The article argues that the court must do more to help the American public understand its rulings. 

An unidentified protester is removed by security as she heckles U.S. Supreme Court Associate Justice Amy Coney Barrett at the Ronald Reagan Presidential Library Foundation in Simi Valley, Calif., on Monday, April 4, 2022. (AP Photo/Damian Dovarganes)

“It is not enough that reasons be given in some form that might be decipherable by some citizens having specialized knowledge,” Sullivan and Feldbrin wrote (emphasis in original). “Courts should not only explain the reasons for their decisions, they should do so in a way that can be understood by those whose lives are affected by them.” 

The court issues opinions on only a small portion of the work put in front of it. Opinions are usually issued only for cases in which the court decides to hear oral arguments. The majority of the appeals to the court are denied without any explanation for the justices’ decision. 

Outside of denials and grants, the court also makes a number of decisions on its emergency docket. This area of the court’s work has faced increased criticism — even from the court’s own justices — over the past few years. In most cases, the majority does not offer an opinion alongside rulings on the shadow docket, making it nearly impossible for the public to understand the reasoning at play. 

“Most decisions the court makes, whether shadow docket or denial of certiorari, are not written at all, and you can't really know why they decided or not,” Feldbrin said. 

Apart from the way opinions are written, Sullivan and Feldbrin’s research delves into how the rulings are communicated. 

“Let's assume that the court isn't going to change the way it writes its opinions; how can it communicate the substance of its opinions to the press and to the public,” Sullivan asked. “That's where I think that the court is kind of out of sync with the conditions under which we live now.” 

The article argues that the court has ignored how the media landscape has changed over the last decade to its own detriment. 

“The press is more partisan, has fewer resources, and is under greater pressure to report more quickly than ever before,” Sullivan and Feldbrin wrote. “At the same time, the Court’s opinions are longer, more complicated, and more difficult to decipher.” 

High courts around the world face similar conflicts, but Sullivan and Feldbrin found that other courts have made adjustments where the U.S. has not. The Supreme Court of Canada has adopted press “lock-ups” where reporters are able to review decisions before they are released. During the lock-up, reporters get an off-the-record briefing on the decision and are able to ask questions. 

“I think what's important in understanding what other courts around the world have done is they've recognized, not just that the media is under this pressure, but that the consumers of news expect instantaneous gratification, right,” Sullivan said. “They expect the media to be able to report really quickly and thoroughly and knowledgeably about what the court has decided, and I think that's the reason why these steps that other courts have taken like the lock-up procedure … in the Canadian Supreme Court, for example, is so meaningful.” 

The article stops short of offering specific reforms for the court, but Feldbrin said cameras in the courtroom may actually offer a way for the justices to better communicate their rulings. Justices have long resisted introducing cameras in the courtroom, but their arguments are mostly focused on obstacles to having cameras at oral arguments. Feldbrin suggests using them for announcing opinions. 

“I think that we may suggest that cameras can be adopted, at least in the opinion announcement, which is just when the court announces the result,” Feldbrin said. “The whole kind of changing dynamics of the argument is completely unrelated to announcing the opinion and making it more transparent. Why couldn't the American people view the opinion announcement? I think that can be an improvement to make the court more transparent.” 

Ultimately Sullivan and Feldbrin argue that it is in the court’s best interest to make sure that their opinions are accurately reported and understood by all Americans, not just those with law degrees. 

“The legitimacy of the Court depends in part on the way in which its decisions are reported and how they are understood beyond the realm of professional elites,” Sullivan and Feldbrin wrote. “It is hard to square the Court’s apparent lack of concern about the way in which its decisions are communicated to the citizenry with the needs and values of a modern democratic society.” 

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