I really appreciate you putting out these short notice "thunder" episodes and I hope they continue, but it really seemed to me the first half of this episode was trying to divine the rules of calvinball and the second half was trying and failing to come up with a better explanation than politics for why the court acts the way it does.
Follow up to the general general conversation: how do you like to refer to JAG corps officers? Typically they are referred to as "judge advocate", but can we also refer to them as generals? A general commander? A general captain? If not the typical officers, what about the leadership. Each branch has a commanding officer of their JAG corps that is typically a flag officer. In the army is this person general General? In the navy is it general Admiral? Or is it Admiral general?
My career was in business and not law. It may be unfair to compare the two. I'm often dismayed by the low quality work SCOTUS puts out. I'm not talking about agreeing or disagreeing with the overall decision. It's the inconsistent use of doctrines (e.g., do or don't consequences matter), the lack of depth of the reasoning, the unwillingness to seriously engage with the dissent's concerns, and the lack of clarity being given to lower courts in the decisions. If you consistently produced such low quality work in the business world, you would put on a performance improvement plan and terminated if the poor work continued.
The Dobb's leak was unfortunate, but it made me wonder if there should be a small, highly qualified and discreet Opinion Review Board that SCOTUS runs its opinions by for feedback and suggested changes before the opinion is released. The Board's role would not be to change the decision but to provide feedback where the opinion could be clearer and provide better clarity to the lower courts and understanding to the public. As examples, the THT test in Bruen was very confusing, the Trump immunity case didn't answer if it's acceptable for the President to have opponents assassinated, Skrmetti was unclear if it okay to use biological differences as substitutes for sex or race discrimination. It's questionable if the Justices have the humility to accept such feedback, but we would all benefit if SCOTUS provided higher quality opinions.
When it comes to merits decisions, I find it hard to believe that an Opinion Review Board would actually improve things. You already have nine experienced legal experts and nine to thirty-six of the brightest law grad students in the country working on these; the inadequacies of the reasoning in merits decisions is likely due to actual constraints, not simple oversights. (The two most obvious constraints are 1) inadequate time for March/April arguments and 2) disagreement among the majority on details, leading to them being entirely excised from the opinion.)
On the other hand, only two of your examples are merits decisions (Bruen and Skrmetti.) The "confusion" in Bruen was almost certainly a deliberate choice to allow the details to be worked out in various ways by lower courts in hopes of more clarity when the court rules further on it (see, Rahimi.) And in Skrmetti, the concurrences make it very clear that the majority does not agree on the best grounds on which to resolve the issue; the chosen grounds are narrow because there aren't 5 justices with a single answer to the question you would like answered.
The rest are on the interim relief docket, and I think best practices there are very unclear. The fundamental problem with the interim relief docket is that there's simply a lot less consideration of the questions. Far less time for debate among the justices, no oral argument and more expedited briefing from the parties, and few if any amici curiae. One of the reasons why the Court tends not to write opinions on interim decisions is that any writings by the court are treated as binding on lower courts across the nation; justices who are epistemically cautious about interim decisions tend to write less about them in order to avoid binding lower courts to reasoning that is more likely to be regretted on further developments. (The dissents are free of this consideration, since ill-considered dissents bind noone.)
While I am not sure that the Court has figured out the optimal policy on writing, and I think they should probably order oral arguments on interim (but not emergency) cases more frequently, I don't think their output is as obviously deficient as you do. They're bound, by structure, tradition and powers, to be more conservative in how much and how broadly they speak than any typical business executive.
Thanks for your thoughtful reply. A couple of comments:
1. The fact that "...nine experienced legal experts and nine to thirty-six of the brightest law grad students in the country..." can produce such questionable work is scary. I've come to think that SCOTUS decisions would be much better if you had less "legal experts" on SCOTUS and had people from a diverse set of expertise and backgrounds.
2. "They're bound, by structure, tradition and powers...,". My view is they really aren't. They pretty much get to do whatever they want. They largely inhabit a zone of no accountability or consequences for what they do or don't do.
It's not surprising that someone who denies the restrictions the Court operates under would find its results unsatisfactory. A sonnet makes a terrible essay, and if you find no value in the constraints the poet is following, it will seem like questionable work indeed. And perhaps you're right, and the Court is wrong to view itself as bound in these ways.
But it's worth noting that your point 1 is caused by your point 2. Much of what you find questionable in the output is questionable because you don't agree with the constraints the authors were consciously following, not due to some lack of skill on their part. An Opinion Review Board can't fix this problem; you would need to convince the justices that they should act like an executive board instead of a traditional English court.
I really appreciate you putting out these short notice "thunder" episodes and I hope they continue, but it really seemed to me the first half of this episode was trying to divine the rules of calvinball and the second half was trying and failing to come up with a better explanation than politics for why the court acts the way it does.
Follow up to the general general conversation: how do you like to refer to JAG corps officers? Typically they are referred to as "judge advocate", but can we also refer to them as generals? A general commander? A general captain? If not the typical officers, what about the leadership. Each branch has a commanding officer of their JAG corps that is typically a flag officer. In the army is this person general General? In the navy is it general Admiral? Or is it Admiral general?
My career was in business and not law. It may be unfair to compare the two. I'm often dismayed by the low quality work SCOTUS puts out. I'm not talking about agreeing or disagreeing with the overall decision. It's the inconsistent use of doctrines (e.g., do or don't consequences matter), the lack of depth of the reasoning, the unwillingness to seriously engage with the dissent's concerns, and the lack of clarity being given to lower courts in the decisions. If you consistently produced such low quality work in the business world, you would put on a performance improvement plan and terminated if the poor work continued.
The Dobb's leak was unfortunate, but it made me wonder if there should be a small, highly qualified and discreet Opinion Review Board that SCOTUS runs its opinions by for feedback and suggested changes before the opinion is released. The Board's role would not be to change the decision but to provide feedback where the opinion could be clearer and provide better clarity to the lower courts and understanding to the public. As examples, the THT test in Bruen was very confusing, the Trump immunity case didn't answer if it's acceptable for the President to have opponents assassinated, Skrmetti was unclear if it okay to use biological differences as substitutes for sex or race discrimination. It's questionable if the Justices have the humility to accept such feedback, but we would all benefit if SCOTUS provided higher quality opinions.
When it comes to merits decisions, I find it hard to believe that an Opinion Review Board would actually improve things. You already have nine experienced legal experts and nine to thirty-six of the brightest law grad students in the country working on these; the inadequacies of the reasoning in merits decisions is likely due to actual constraints, not simple oversights. (The two most obvious constraints are 1) inadequate time for March/April arguments and 2) disagreement among the majority on details, leading to them being entirely excised from the opinion.)
On the other hand, only two of your examples are merits decisions (Bruen and Skrmetti.) The "confusion" in Bruen was almost certainly a deliberate choice to allow the details to be worked out in various ways by lower courts in hopes of more clarity when the court rules further on it (see, Rahimi.) And in Skrmetti, the concurrences make it very clear that the majority does not agree on the best grounds on which to resolve the issue; the chosen grounds are narrow because there aren't 5 justices with a single answer to the question you would like answered.
The rest are on the interim relief docket, and I think best practices there are very unclear. The fundamental problem with the interim relief docket is that there's simply a lot less consideration of the questions. Far less time for debate among the justices, no oral argument and more expedited briefing from the parties, and few if any amici curiae. One of the reasons why the Court tends not to write opinions on interim decisions is that any writings by the court are treated as binding on lower courts across the nation; justices who are epistemically cautious about interim decisions tend to write less about them in order to avoid binding lower courts to reasoning that is more likely to be regretted on further developments. (The dissents are free of this consideration, since ill-considered dissents bind noone.)
While I am not sure that the Court has figured out the optimal policy on writing, and I think they should probably order oral arguments on interim (but not emergency) cases more frequently, I don't think their output is as obviously deficient as you do. They're bound, by structure, tradition and powers, to be more conservative in how much and how broadly they speak than any typical business executive.
Thanks for your thoughtful reply. A couple of comments:
1. The fact that "...nine experienced legal experts and nine to thirty-six of the brightest law grad students in the country..." can produce such questionable work is scary. I've come to think that SCOTUS decisions would be much better if you had less "legal experts" on SCOTUS and had people from a diverse set of expertise and backgrounds.
2. "They're bound, by structure, tradition and powers...,". My view is they really aren't. They pretty much get to do whatever they want. They largely inhabit a zone of no accountability or consequences for what they do or don't do.
It's not surprising that someone who denies the restrictions the Court operates under would find its results unsatisfactory. A sonnet makes a terrible essay, and if you find no value in the constraints the poet is following, it will seem like questionable work indeed. And perhaps you're right, and the Court is wrong to view itself as bound in these ways.
But it's worth noting that your point 1 is caused by your point 2. Much of what you find questionable in the output is questionable because you don't agree with the constraints the authors were consciously following, not due to some lack of skill on their part. An Opinion Review Board can't fix this problem; you would need to convince the justices that they should act like an executive board instead of a traditional English court.