Legal Commentary

Chad wrote yesterday about Bill Stuntz's argument that writing ability is an important (but overlooked) factor in selecting a Supreme Court justice because writing ability--as much as smarts and experience--define judges' influence. Let me take the point in a slightly different direction: How much should writing ability be considered in the scholarly literature on appellate decisionmaking? And how can it be taken into account as a variable?

I just finished reading an intriguing essay by Tracey George and Chris Guthrie (forthcoming in Duke Law Journal) arguing for a change to the structure of the Supreme Court, primarily by expanding the size of the Court (to 15 justices) and having most cases argued and decided in panels of three (with an en banc process for important cases, including those in which a state or federal law is challenged on constitutional grounds). This was a follow-up to a larger 2008 article proposing a panel structure for the Court (which I have not had a chance to read). They argue that the overwhelming majority of cases (almost 90 %) since 1953 would have come out the same if decided in randomly selected panels (based on how each justice voted), including in a high percentage of 5-3 and 5-4 cases.

But how does or should writing quality and the writing skill of different justices play in here?

Random re-distribution of justices into panels means random re-distribution of opinion-writing. It is likely that the original opinion-writer (or original dissenter) would not be on the panel. Or, if she were, she might not be assigned the opinion because the author-selection process will be different (in terms of who does the assigning, how assignments are made, and what other cases there were to be assigned). Prospectively, the distribution of opinions is likely to be different--subject to the randomness of panel selection, as well as the effects of a hoped-for increase in the Court's docket on who takes which cases.

This means responsibility for the opinion in a given case could be placed in the hands of a different author, for better or for worse. At a minimum, this might alter the political and precedential influence of the decision, accepting Stunt'z point (and I think I do) that influence beyond the Court is, in part, a product of the craft of writing. The effect an opinion will have in political, policy, and academic debates is a product of the quality and style of the opinion. The ease and consistency with which lower-court judges can apply a precedent depends greatly on the clarity, power, rhetoric, and overall quality of the Supreme Court opinion. Keeping things focused on Justice Souter, one need look no further than the mess created by his weak, all-over-the-map opinion on pleading standards in Bell Atlantic v. Twombly. The panel proposal might, incidentally, have its greatest effect on the work of the lower courts.

And what of the influence of writing skill within the Court? How, if at all, might changing authorship alter case outcomes? For example, imagine the panel in an 8-1 case now consists of the dissenter and two of the non-writing majority; if that dissenter is an influential writer (or no longer has to argue against the original influential writer on the other side), might she convince at least one of her colleagues to vote differently?

Prospectively, George and Guthrie assume that future justices will behave consistent with how they have behaved in the past, thus future cases likely will come out much as we predict from the preferences of the full current Court. But does the variable of writing abilities of individual justices alter that conclusion, based on which justices are assigned to which panels and how opinions are assigned within the panel and what cases justices take? Might a case that likely would come out one way if an influential justice (say, Scalia) is writing the majority opinion now come out differently if Scalia is not on the panel and not able to exert the influence of the pen?

I am not sure the answer to the question. And I am not sure it is measurable in any meaningful way. But I put it out there for consideration.