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Wednesday, August 02, 2023

Page Limits?

At SEALS last week, I watched an interesting panel on SCOTUS credentials. Panelists were Ben Barton (Tennessee, author of The Credentialed Court) and Renee Knake Jefferson (Houston) and Hannah Brenner Johnson (Cal Western), co-authors of Shortlisted). Ben mentioned the absurd lengths of recent SCOTUS opinions, which he attributed to the changing (and homogeneous-in-some-respects) identities of the justices and their workloads. Ben suggested the need for word-or-page limits on SCOTUS opinions, just as the Court imposes word-or-page limits on the parties.

I agree there might be some merit to this. Here is the question: Could Congress impose that requirement?

Obviously Justice Alito would say no. Now how about the rest of us who actually work with the Constitution's text and structure. Does the "judicial power" and Klein's principle that Congress cannot tell the Court how to decide a case include how the Court writes and structures its opinions resolving those cases? Is opinion length akin to the sources of law the Court can rely on (e.g., requiring originalism or prohibiting international law)?

Leaving comments open for thoughts.

Posted by Howard Wasserman on August 2, 2023 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink


Joe, let's just cut to the chase and mandate that all opinions be issued in the form of TikToks or whatever the youngsters are into these days.

Posted by: kotodama | Aug 5, 2023 1:21:39 AM

There has been a mixture in respect to how long opinions have been in recent terms. I recall, for instance, Justice Ginsburg's quite short and sweet opinion regarding incorporating the Fines Clause. A Slate article recently ridiculed how short (and thin) some Kavanaugh opinions for the Court were. Barrett's ICWA opinion covered a lot of ground in around thirty pages with sizable margins.

I think there was some effort during the Roberts years to reduce the length of opinions. The effort was mixed but to me seems to have borne some fruit.

I think congressional power to pass necessary and proper legislation allows for some rules regarding opinions. For instance, I think Congress can at the very least require opinions to be written for the cases granted cert. They can say dissenting opinions are appropriate (compare the practice in one or more nations that do not provide for this) A reasonable page limit should be appropriate.

The pushback would be general principles of separation of powers and so forth. The case here is weak if the basics involve writing an opinion and having a certain length. It might be so short that a reasonable case can be made that the judicial function is being interfered with. Nonetheless, that would be for an extreme rule ("one-page opinion"), not for a reasonable page limit.

I grant "who cares" might be a serious rejoinder (as suggested in a comment) but reasons can be cited why a limit would be "proper." This would include helping the public and others to be able to better understand what the Supreme Court decided. My suggestion there would include a clear statement, perhaps a useful box with little check marks, on what each justice supported when the justices disagree with some section of the majority or plurality opinion.

Posted by: Joe | Aug 4, 2023 3:06:38 PM

I agree the opinions in recent years are Too Damn Long. Why don't these learned jurists, especially the Republican appointees, take heed of Reagan's admonition that if you're explaining (ad nauseam), you're losing. [PS: I am not a crank.]

That said, and recognizing this is a prawfs blawg, what difference does it make really? It certainly helps keep the casebook industry alive, but otherwise that's about it maybe.

Regardless, the concept, if taken seriously, does raise some interesting (if not "major") questions though. First, how could such a requirement be enforced? Is an opinion author penalized in some way for exceeding the limit? And if so, what kind of punishment would make sense in that case? For example, is the part of the opinion exceeding the limit simply disregarded, or treated as merely advisory, nonprecedential, or nonpublished etc.? Does the punishment only apply to the lead author, or to anyone else who signed on to the opinion?

Also, would the limit apply to concurrences and dissents or just majority opinions? What about overlong circuit court and district court opinions, aren't those a problem too?

Finally, how could any party have standing to challenge the limit? Who is "harmed" by an opinion being shorter than it would have been otherwise? Especially at the SCOTUS level, the "harm" wouldn't be apparent until after the opinion issues. So then does the "aggrieved" party have to move for rehearing? If SCOTUS just takes it up sua sponte, doesn't that violate the party presentation rule they've harped on so much recently, as well as constitute an advisory opinion?

Posted by: kotodama | Aug 3, 2023 7:56:48 AM

Could a similar result be achieved indirectly by requiring the justices to grant merits review, and oral argument, on a minimum number of cases -- say, 100 -- per term? Increasing the workload ought to reduce the verbosity. Requiring a certain number of merits decisions would surely be a "regulation" of the court's appellate jurisdiction, while preserving the court's discretion to determine which cert petitons to grant.

Just a thought.

Posted by: Steven Lubet | Aug 2, 2023 5:31:24 PM

I don't have an informed view, but among those who do, I wonder if your answer is different if the word limit for a majority opinion is (a) 50,000 words, (b) 5,000 words, or (c) 50 words.

Posted by: Orin Kerr | Aug 2, 2023 4:36:52 PM

I have a discussion of the literature and arguments about whether Congress could prohibit dissenting and concurring opinions, and/or prohibit listing which Justice(s) wrote or joined the Court's opinion, which are (I think) similar to the question of whether Congress could impose page limits. Our Kardashian Court (and How to Fix it), 106 Iowa L. Rev. 181, 208-14 (2020). It is definitely an interesting question!

Posted by: Suzanna Sherry | Aug 2, 2023 4:36:49 PM

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