Thomas G. Moukawsher

It’s not your fault. It’s because most decisions are written in a secret formula known to most judges and lawyers but not really understood even by them.

The formula has its origin in formalist legal thinking.  As you might imagine, formalist legal thinking places the form of a legal ruling over its substance.

Judges of all stripes do this, but they have different twists on the formula.

For instance, Justice Antonin Scalia and other jurists perceived as leaning to the right tend to follow a formula called originalism.  It focuses first on an aspect of originalism called textualism.  In its least attractive form, it focuses on grammar games.  For instance,  Justice Antonin Scalia’s 2007 opinion restricting gun control laws turned on an original bit of sentence parsing.  To Justice Scalia the Second Amendment is “naturally” divided into two clauses, one prefatory and one operative.  Naturally, enough, the merely “prefatory” part turned out to be the part that links the right to bear arms to militia service and the “operative” part—the one to pay attention to—turns out to be the one that grants a “right to keep…arms.”

The trouble is that this exercise doesn’t make Justice Scalia’s opinion more convincing. A different justice could have simply parsed the sentence differently. The first clause could have been labelled as a statement of the ends sought by the amendment—a well-regulated militia—and the right to keep and bear arms could have been described as the means to achieve that end.  Thus, guns as the means would be only permissible to achieve the end stated, a well-regulated militia.

The next aspect of originalist formalism is equally unpersuasive. Originalists say that contemporary problems with the issue considered in the Constitution don’t matter. History matters, but unfortunately, it’s easy to disagree about history and, in his Second Amendment decision, Justice Scalia chose sources seeing a broad view of gun rights while other justices disagreeing with his opinion provided an equal number of sources showing a strong historical basis for limiting private weapon ownership. The discussion of guns became little more than an academic dispute, first by grammarians and then by historians.

What’s lost is the humanity. The Second Amendment has been seen by reasonable people as creating rights and limits, so why not consider the value we place on the right to bear arms against the public safety concerns of proliferating gun violence in the real rather than the academic world?  Justice Scalia could have made the case that individual gun ownership is a legitimate way for law-abiding citizens to protect themselves in a vast country without immediate access to help from law enforcement.  His opposition could argue that more guns are leading to more gun violence, making no one safer.

Regardless of your view on this subject its appearance as a grammatical and historical academic dispute means that reading the Supreme Court’s decision on the subject isn’t likely to help any of us form opinions on the subject.

Still, at least Justice Scalia had a coherent approach. The worst thing about most court opinions is we can’t make much sense out of them at all.

Louisiana v. Biden is a typical decision. The heart of the decision is hard to find.  Page after page is taken up with needless factual background, needless legal background, subsidiary issues, and recitations of the parties’ claims.  Most of this has likely been written by a law clerk working under a mechanical formula. It takes up about half the 44-page decision. When the key issues are joined, the court mostly quotes other courts. There are only sentences here and there to help us see what the court is really deciding.  Around page 33 we finally find the court’s key judgments. As the court walks mechanically through the legal standard as if all the elements of the standard are of equal importance under the circumstances of that case, one or two sentences at the end of each section decide the case.  The judge’s thinking winds up being a matter of reading between the lines. Lawyers will study the decision and speculate about what “really” decided the matter.  Ordinary readers would give up the chase early on.

Court decisions that get to the heart of who wins and why in their opening sentences are far more effective than the tedious and formulaic decisions that dominate American courts today.  It would be one thing if the formalist approach increased our faith in the judiciary, but, today, it either leaves a complete mystery or simply alienates the public.

Judges should approach their work as humanists.  They apply basic human values enshrined in law to the humans in front of them with a view also to the humanity that may follow them to court later.  Lawyers shouldn’t have to guess why a case came out the way it did.  The parties and, indeed the public, should be able to read court decisions and walk away agreeing or disagreeing with it but at least understanding the real reason for the judge’s decision.