The Supreme Court’s failure to communicate jeopardizes the court’s ability to effectively state and dictate law, a noted law professor said Friday.
Erwin Chemerinsky, dean of the University of California, Irvine Law School, challenged the current practices the Supreme Court uses in communicating with the public in the keynote address for a two-day BYU law review symposium titled “The Press, the Public and the U.S. Supreme Court.”
Chemerinsky asked the audience questions that summed up the frustration lawmakers have.
“A judicial opinion improves the quality of decision making,” Chemerinsky said. “I believe that if people have to write a decision, giving reasons for their result, they’re more likely to be careful.”
Chereminsky said the legitimacy that comes with an opinion seems less like an arbitrary choice.
“Written opinion serves a key function of developing the law,” he said. “It will give guidance to lower courts, and the future Supreme Court for decisions.”
Chemerinsky said there were many different audiences that would benefit from the opinion of the court.
The press and public matter, but only a small segment will choose to read Supreme Court decisions, among those academic commentators and police officers.
Regulators of government at all levels have to follow that law, as do other countries that look to the U.S. for examples of judicial review. The Supreme Court sets precedent for all lower courts to follow.
“If you accept these as the audience of Supreme Court opinion, then we can talk about how effectively the Supreme Court communicates with these various recipients,” Chemerinsky said. “We have to keep all these audiences in mind to see how the court is doing.”
Chemerinsky’s main issues with the court are how the court grants or denies certiorari, how they release their opinions and the opinion themselves.
A writ of certiorari is an order given by a higher court allowing or directing the lower court to send the case to them to review.
Chemerinsky said the court only allows 75 cases to be presented each year. That number pales in contrast to the number of petitions the court receives a year — more than 9,000.
“When the Supreme Court denies certiorari, there is no opinion,” Chemerinsky said. “For the vast majority, most people lose and don’t get an explanation. Their case is surely over, even when the cases are death.”
Chemerinsky has brought several compelling cases to the Supreme Court. But, in each case, all that was received from the court was one sentence: “Certiorari is denied.”
He said he thought even a checklist explanation would help others better understand why the case was denied.
Chemerins0ky said he believes0 the absence of cameras in the courtroom is an absence of communication.
“As a crucial part of government, people should be allowed to watch their government work,” he said. “As part of being a democracy … there should be cameras in the courtroom.”
Chemerinsky said having cameras would allow people to better understand the issues facing the court, as well as understand the process of Supreme Court decision making. If people could watch oral arguments, they would understand the law much better.
The court does not currently announce what day cases are being heard, thus preventing media from covering cases sufficiently.
In citing the court’s inability to communicate through opinions, he said there is rarely a clear explanation, and the opinions are often dense and hard to follow.
“I think the court needs to be far more attentive to those who will rely on the opinions, to give guidance to that,” he said.
In opinions, he said, there are perfect inverse correlations: as the number of cases go down, the number of pages go up. Jokingly, Chemerinsky said the court should impose a maximum number of words published, as four of the current judges are academics.
“Ultimately, Supreme Court opinions are rhetorical,” Chemerinsky said. “They exist to communicate to so many different audiences and yet, with each audience, with each step, what we see is a failure to communicate.”
