Covering the Supreme Court and the Judiciary in (Mostly) Plain English

“Facts” from amicus briefs make it in all the time without an apparent attempt at verification.

Perhaps they do check and then ignore their findings, but why bother with that?

There's something very funny and simultaneously chilling about a majority opinion authored by Gorsuch[1] who has said “[o]nly the written word is the law” [1] totally mixing up laughing gas and a toxic pollutant emitted by cars.

[1] I know the clerks actually write them, HN pedants.

[2] https://www.scotusblog.com/2020/06/symposium-the-triumph-of-...

Say the Supreme Court majority writes, as guidance to lower courts, that interpretation of a certain amendment should feature consideration of laws enacted early in the country’s history, and before its founding. They further write that for the specific question before them, the total absence of similar laws in that history means they must rule a certain law unconstitutional.

Further suppose they were simply factually incorrect to the point that such laws were in fact common and are very easy to find, if you look like at all.

Now what? If you apply their guidance on how to analyze these questions, you’d have to reverse their ruling on laws similar to the one they struck down, should they come before you. But they ruled that specific one unconstitutional… but their ruling was contrary to the guidance they gave.

So we end up tied in a bit of a knot. Had these facts been argued rather than pulled out of some damn amicus brief without examination, perhaps the government would have presented a large pile of examples to rebut the simply-false claim that no similar laws existed in the country’s early history. But the court injected these “facts” as a key part of their reasoning when writing their decision, instead. Would it have changed the outcome? No. Would it, perhaps, have made it too embarrassing even for these clowns, to include that particular bit in their ruling? Maybe! And future lower court cases might take a different course, as a result.

[EDIT] The take-away for the casual reader of Supreme Court opinions, then, is that if they write something like "no examples of such laws exist until [YEAR]" don't be surprised if that turns out to be hilariously wrong. A "fact" making it into a Supreme Court opinion is not a strong indication the fact is... an actual fact. Their opinions are far less well-researched than one might suppose, emphasis on far, it's not that they're just imperfect like any people, their fact checking is outright poor by any standards.

Gorsuch mixing up nitrous oxide and nitrogen oxide over and over is a recent fun example. The court also has engaged in fact finding despite the rules. Kennedy v Bremerton is one example. Alexander v. South Carolina State Conference of the NAACP is another.

You also see absolute garbage lies. FEC v. Ted Cruz for Senate has the majority saying "we can't find examples of X happening" while the dissent has a big list of examples of X happening. Or just straight up falsehoods about original understanding. DC v. Heller is a great example of this.

All I am saying is that writing can be clearer and more concise when you don't have to include asides and digressions to preemptively defend it from criticism.

This is a technical point on power dynamics and writing style. When the authors are in a position of power, then they can focus more on readability (and cogency) and less on playing defense, because their court seats are secure for life.

By contrast, justices in lower courts are influenced by organizational politics and must focus more on defensibility, which may come at the expense of clarity.

So I do not find it surprising that the supreme court is able to produce more readable decisions than lower courts, because they have unique incentives.

> The primary purpose for their writing of opinions is not to defend the decisions, but to instruct lower courts on how they should reason on similar cases.

Correct. This is different from lower courts, which also explains why they are able to focus on readability.

This seems like a flawed argument to me that if applied would see technology stagnating. The reason it’s flawed is the assumption that the system is at a fixed max size. However, if it’s growing quickly, you can always come up with new systemic ways of doing things that are divorced from the past and over time most of the things are done the new way. You can even refactor/replace the old stuff over time. Law isn’t quite like code which is where this analogy breaks down a bit but something to think about.

Defined legal terms is just what we have now, but starting over.

As for being constructed deliberately to obfuscate its purpose, all I can say is that that's not my experience and it seems like a pretty self-defeating aim to me. For legal language to have any value at all, you have to be reasonably certain that a court would give effect to your intended meaning, and the more you obfuscate your intentions, the bigger the risk that it will be construed in an unintended way by a court.

> Plain clear language with defined terms is legally binding and difficult to circumvent.

As soon as you introduce defined terms, it is instantly less plain and less clear.

- There is a partisan component when democrats criticize the effect of cases like Dobbs, Janus, and Trump v. USA. This definitely exists.

- There is definitely a legal interpretation component. I heard some good analysis on legal interpretation on NPR around the Chevron deference when Loper v. Raimondo happened. They had on law professors, federal lawyers, and even one of the lawyers who argued the original Chevron case. There was a lot of content educating people on the history of Chevron deference, what it means, and what the new ruling might mean for regulators in the future. I've also seen a lot of discussion poking holes in the unitary executive theory (on the left) and justifying it (on the right). You sometimes have to dig to find this - long discussions on legal theory don't exactly make for compelling media.

- Finally, there is a "corruption on the SCOTUS" component. I would argue that the timing here is partisan, but the material is not. The conflicts of interest documented are factual, and the calls to adopt a code of ethics should have been a nonpartisan issue. Personally, I believe that the GOP learned the wrong lesson from the Nixon impeachment and Bork nomination and has adopted a more doveish stance on balancing political power versus corruption within their party, and the partisan lean of the SCOTUS scandals is a consequence of this.

That this is regarded as partisan by anyone is why we're screwed. The revelations about Thomas should have had all of Washington after his head. Nope, it's "partisan" so zero action taken and normal people are even confused enough about it that here we are, having this exchange. If that doesn't scare you, it should.