Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, June 20, 2023

Court opinions are more than soundbites


A_travers_les_ateliers_1954.12.17

Like many of you, I read the Supreme Court’s recent decision in National Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023) very carefully. Not just because the dormant commerce clause is cool, but because the various opinions offer an interesting insight into how the justices are aligning and thinking on different issues.

One comment in the majority opinion stood out to me as being particularly important. The Petitioners (and some courts) had read the language of prior Supreme Court cases very closely, and concluded that they had created an “almost per se rule” that a state law, neutral on its face, violates the dormant commerce clause “if the ‘practical effect’ of the law is to control” out-of-state prices. Ross, 143 S.Ct. at 1155 (quoting Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 583 (1986)).

The language of those cases was properly quoted by the Petitioners. However, Justice Gorsuch reminded us that “[T]he language of an opinion is not always to be parsed as though we were dealing with language of a statute.” Id. (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)). Instead, he continued, our courts decide “cases and controversies,” and their opinions must be read with a careful eye towards context. Id.

This distinction was aptly summarized by the Ninth Circuit a few years ago: “Stare decisis is the policy of the court to stand by precedent . . . . [T]he word ‘decisis’ . . . means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not ‘to stand by or keep to what was said.’” In re Osborne, 76 F.3d 306, 309 (9th Cir. 1996). Using this principle, the court was able to determine an issue when there were prior cases with directly conflicting language, by looking at what those cases did.

So, we are supposed to read opinions like opinions – they apply the law to specific cases, and all we can conclude is that in that particular case, the law has a given result. The rest is Socratic – we move the goalpost a bit, analyze the legal principles under changed facts, and argue that these facts should have a result favorable to our client under the stated principles, while our opponent tests that reasoning, and the court tries to find the best answer.

Why, then, do we focus so much on quotes and soundbites? Well, for one thing, it is easier. But that is too simple of an answer.

There are actually several reasons why we are susceptible to soundbites. See Judith M. Stinson, Why Dicta Becomes Holding and Why it Matters, 76 Brook. L. Rev. 219 (2010). As Professor Stinson suggests, electronic research means we focus in on specific words and phrases in our research, which then supports their usage in our reasoning. The rise of the use of law clerks may also impact the court’s focus on words. Changes to citation rules encourage soundbites and quotes. And our culture is increasingly a “meme” based culture, relying on quick soundbites to convey ideas.

Whatever got us here, Ross is a good reminder that finding that right quote doesn’t mean you’ve found the right law. We have to parse through, carefully, what the courts have done in a particular situation, not just the words they have used.

This isn’t a job AI (currently) can do. AI will find (or generate) the soundbite, but it can easily miss the holding. It takes a lawyer to reason through the facts and suggest how they should apply in a given case or controversy. If you just rely on soundbites, you might miss the decisis for the dicta.

(image credit: Honoré Daumier, A travers les ateliers, 1862).

https://lawprofessors.typepad.com/appellate_advocacy/2023/06/court-opinions-are-more-than-soundbites.html

Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Rhetoric, United States Supreme Court | Permalink

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