Here's a New York Times article by Adam Liptak describing a new linguistic study of Supreme Court opinions conducted by a law professor and a couple of computer scientists. The study concludes that SCOTUS opinions are becoming (a) longer, (b) more accessible to the public and less legalistic in their language, and (c) grumpier.
Point (a) has been made in other recent studies and seems undeniably true. Point (b) rings true to me as someone who has read a lot of SCOTUS opinions written during the past 200+ years. Point (c) probably is the hardest to measure (as the Times article notes), as it turns on the frequency in the Justices' opinions of certain "positive" and "negative" words, which may have special connotations in a legal context; nonetheless, it too is consistent with my own experiential sense of trends over the past generation or two.
Intuitively it seems likely that these three phenomena, rather than each developing independently of the others, are interrelated in some way. Here's a brief and very tentative hypothesis about how.
Legal thought over the past century or so has moved from the belief that law is autonomous (it involves a unique style of reasoning, it draws on fixed universal truths, it is best done by experts who are disconnected from political or other outside influence) to a view that law is more or less a form of politics, if a rather special form: it employs a type of practical reasoning; it draws on earthly experience and moral and political beliefs and goals; as such, it invariably relies on the personal views of lawyers and judges and thus should be done by people who, while specially trained, represent diverse perspectives and backgrounds.
As our philosophical understanding of law has evolved in this way, judges have come to behave like types of political actors, albeit rather unique types. Judges have intervened in the national economy (mostly disastrously, during the so-called Lochner era of the first few decades of the 20th century), in race relations (with mixed results, from the glorious Brown v. Board to the less clearly laudatory recent cases on affirmative action), in voting rights and election law (again with mixed results, from the beneficent "one person, one vote" decisions in the 1960s to Citizens United and recent refusals to overturn voter ID laws and partisan gerrymandering), and in many other areas of social and political life. This may be a good thing overall, it may be a bad thing, but it almost certainly was inevitable.
And as judges have intervened in areas that 100 years ago might have been the exclusive realm of politics, judges have come to be seen as political actors. So the federal judicial nomination process has become politicized, focusing not on the legal skills of the nominee but rather on how he or she is likely to vote on a host of hot-button issues. And so -- surprise, surprise -- judges themselves have begun not only to intervene in formerly "political" affairs, but also to communicate like, well, politicians. Hence the move away from technocracy and formalism in judicial opinions and toward plain language. (Judges, like politicians, want to be understood by and persuasive to the general public.) And hence the grumpiness: once we acknowledge that a case can't be decided by mechanical application of universal legal truths, we enter the realm of political and moral disagreement, and judges (like politicians, and indeed like citizens) tend to get testy when someone disputes a basic value or ideology they hold dear.
And, hence, the long-windedness. It usually takes longer to explain legal concepts to laypeople than to explain them to trained experts. And it takes even longer still when a Justice has to retort (often grumpily) to a point made (often grumpily) by a Justice on the other side.
Should we regret these trends? In my opinion, no -- not as long as there is a reasonable stopping point. The simple fact is that law does not flow from a "brooding omnipresence in the sky," to quote one of the earliest and most influential progenitors of these trends, Justice Oliver Wendell Holmes, Jr.; it is a creation solely of intentional human conduct. Once we recognize that fact, then we can't ignore the role of experience, emotion, and belief in lawmaking, including lawmaking by judges. To deny that these things play a role is to bury our heads in the sand.
But this doesn't mean we ought to succumb entirely to the view that judges are nothing more than politicians in robes. As I write in a recent book chapter, American judges make policy, but they do so from a perspective different from that of an elected legislator or political official. Judges are bound to conform the policies they make to the outlines of the laws they are applying; they can't make them up from whole cloth. They are bound to respond in good faith to the proofs and arguments of the parties before them in court. And they are bound to act impartially as between those litigants. All of these constraints set judges apart from politicians and make law different from mere politics. In acknowledging that judges make law and that they can never be completely objective in doing so, we need to hold on to the things that make judicial lawmaking different, and special.
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