For whom do the Justices write? Searching for transparency | David Adler

Growing calls for greater transparency in the work of the U.S. Supreme Court — from scholars, media and the justices themselves — reflect declining public confidence in the Court, particularly considering the High Bench’s increasing use of the emergency docket. Justice Elena Kagan recently told a judicial conference: “Courts are supposed to explain things, to litigants, to the public generally. As we have done more and more on the emergency docket, there becomes a real responsibility to explain things better.”

It is true, in the short term, that confidence in the Supreme Court is often a function of its decisions, since citizens are likely, at least initially, to react to rulings based on outcomes and whether they align with their politics and ideology. In the long term, however, confidence in the Court as an institution, turns on the persuasiveness of its opinions, and whether its reasoning is tethered to the text of the Constitution and precedent. The “long term” trust in the Court is what we aspire to in a constitutional democracy, a belief that the Court, regardless of the justices’ own biases — political, ideological and religious — is chiefly concerned with its duty to police constitutional boundaries, uphold the Bill of Rights and defend the rule of law.

The Court is its own worst enemy when it renders decisions without providing little in the way of its reasoning, as it often does in cases involving those it hears on the emergency docket. When the Court fails to explain its reasoning or writes in a way that is inaccessible to a general readership, then the public is confused and less likely to trust the Court. These concerns reflect an enduring question: For whom does the Court write? In 1819, Chief Justice John Marshall explained that opinions should be written to be understood by the public. Marshall sought clarity and simplicity. While cases sometimes reflect complex issues, justices should strive to make their reasoning clear. If they write solely for the immediate litigants and resort to centuries-old arcane Latin phrases without explanation of their meaning in plain English, they are ignoring the audience for whom the Constitution was written: We the People. Indeed, Justice Hugo Black was fond of reminding listeners that the Constitution was written not for the president, Congress or the courts, but for the people, whose ratification authority, exercised in the state conventions, to borrow from James Madison, “breathed life into the Constitution.”

Supreme Court rulings without adequate explanations of the justices’ reasoning serve little purpose in a constitutional democracy in which reasoned persuasion should be our governing currency. Inadequate expressions of the reasoning undergirding conclusions, resemble pronouncements from imperious heads of state who are indifferent to public understanding, and leaves readers to guess at the motives behind a decision, which inspires, not trust and confidence, but rather confusion and cynicism.

Thomas Jefferson, an eloquent idealist, but also a savvy realist, could, for effect, make the case for a cynical view of the Court’s work, and why the remedy is transparency. The justices, he said, “consider themselves secure for life; they skulk from responsibility to public opinion. An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning.”

In 1913, Justice Louis Brandeis, who will forever be remembered for his elegant writing and painstakingly thorough opinions that opened a window to the reasoning of the Court, wrote that “sunlight was the best of disinfectants” for a democracy that seeks public understanding of the process of governance, which certainly includes the courts. America is better served, not by judicial mystery, but by judicial transparency.