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The Irrelevance of Judicial Craft to Supreme Court Decisions

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To expand on Paul’s point below, there’s a long-running myth that the public reception to judicial opinions is based on the quality of their reasoning.    One often hears that (in Ben Wittes’s terms) Roe v. Wade “has had a deep legitimacy problem, stemming from its weakness as a legal opinion.”   Such arguments are implausible in the extreme for two reasons:

  • For all intents and purposes, nobody without a professional obligation to do so reads judicial opinions.
  • The popularity of judicial opinions generally tracks the popularity of the underlying policy outcome.

No matter how many conservatives assure us that the public has rejected Roe because it wasn’t a model of judicial craftsmanship, in fact Roe is as or more popular than legal first-trimester abortion. From the other side, take Bush v. Gore. Compared to that abomination, Roe really is a model of judicial craftsmanship — say what you will, at least Roe defined and applied a recognizable legal principle.   Even among defenders of the Court’s intervention it’s hard to find anyone with positive words about Kennedy’s muddy, incoherent opinion.   But reaction to Bush v. Gore showed no net decrease in the Court’s legitimacy — Republicans liked it more, Democrats liked it less, and even those effects began to fade quickly.

One could also note here that Brown v. Board is the most widely admired Supreme Court decision of the last century — but I don’t know of anyone who thinks Warren’s opinion (which he deliberately kept short and narrow) is remotely distinguished as a work of legal craft.   As Jack Balkin and Michael Klarman (among others) have noted, Brown‘s status is a result of the Court having bet the right way on history, not on anything the opinion actually said.   The public judges the Court on results, not reasoning.

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