The first column in this series promised to rewrite portions of opinions from the United States Supreme Court.

I am skipping the rewrite in this second column to focus instead on the dialogue between Justices Kennedy and Scalia in City of Ontario v. Quon, 130 S. Ct. 2619 (2010). Quon was featured in a November 17, 2010 article in The New York Times by Adam Liptak carrying the provocative and self-explanatory headline, “Justices Are Long on Words but Short on Guidance.”

The article summarizes recent academic scholarship and identifies several criticisms directed at opinions issued by the Supreme Court under Chief Justice Roberts. Too many opinions are too long. Many opinions purport to be unanimous, but they really aren’t because individual justices muddy the waters by concurring. They are poorly written. They are drafted by law clerks. They are too complex. They provide insufficient guidance to litigants and lower courts. They plagiarize too much from the parties’ briefs. They are responsible for Jeff Bagwell’s tepid showing in his first Baseball Hall of Fame vote tally.

The last point merits thoughtful consideration and (because I just made it up) further research. The remaining opinion-writing criticisms identified in the article cover a spectrum ranging from serious to whiny to catty to irrelevant. But the insufficient guidance criticism struck a nerve. And that brings us back to Quon.

The opinion “involves the assertion by a government employer of the right . . . to read text messages sent and received on a pager the employer owned and issued to an employee.” Quon, 130 S. Ct. at 2624. “The employee contends that the privacy of the messages is protected by the ban on ‘unreasonable searches and seizures’ found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment.” Id. (citing Mapp v. Ohio, 367 U.S. 643 (1961)).

This much is clear: “The Court of Appeals erred in finding the search unreasonable.” Quon, 130 S. Ct. at 2632.

This much is unclear: An explanation of the proper standard to be applied so that other courts do not repeat this error.

Fearing that “[a] broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted,” the Supreme Court freighted its opinion with assumptions made solely for argument’s sake. These included assuming that the employee had a reasonable expectation of privacy, and that “the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.” Id.

Quon also avoided deciding whether to endorse the standard set forth by the plurality in O’Connor v. Ortega, 480 U.S. 709 (1987), for analyzing the propriety of a government employer’s warrantless search. It did so because “[t]he Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer.” Quon, 130 S. Ct. at 2629. “The judiciary risks error by elaborating too fully on the Fourth Amendment implications on emerging technology before its role in society has become clear.” Id. But if the O’Connor plurality’s standard were to be applied, we are told, then the search at issue in Quon satisfied that possibly applicable standard and was reasonable under that potentially governing approach. Id.

The majority’s hedging and assuming and hand-wringing provoked Justice Scalia to write a concurring opinion. Justice Scalia chided the majority for talking at length about the O’Connor plurality when “it is unnecessary to resolve which approach in O’Connor controls . . . .” Id. at 2634 (Scalia, J., concurring). He also observed: “Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice.” Id.

So where does this leave lower courts? Apparently, it deposits them somewhere in Baffledville near the intersection of Uncertainty Street and the Avenue of the Irritated. See Rehberg v. Paulk, 611 F.3d 828, 844-45 (11th Cir. 2010) (“The Supreme Court’s more-recent precedent shows a marked lack of clarity in what privacy expectations as to content of electronic communications are reasonable. . . . Even after the briefs of 2 parties and 10 amici curiae, the Supreme Court declined [in Quon] to decide whether the plaintiff’s asserted privacy expectations were reasonable.”).

Quon and the Liptak article prompt two conclusions from this interested observer.

One conclusion is that current Supreme Court scholarship seems to be consumed by a counting compulsion. According to the Liptak article, recent studies have

  • Used “linguistic software to analyze the complexity of the usage and concepts in some 5,800 Supreme Court opinions from 1983 to 2008;”
  • Counted the number of words per decision;
  • Identified “the amount of ghostwriting on the court by developing software to analyze how justices’ writing style varied from opinion to opinion and term to term;” and
  • Used anti-plagiarism software to determine that “about 10 percent of the prose in majority opinions from the three terms that concluded in 2005 came from the parties’ briefs.”

Separately, The Wall Street Journal recently reported on not one but two studies that counted up the number of “laughter” notations in transcripts of Supreme Court oral arguments. The conclusion: Justice Scalia got the most laughs. I am not making this one up.

A second and more substantive conclusion is that Quon lays bare an internal tension that sometimes plays out in opinion writing. How should The Holding be framed? How will this language get sliced, diced, and pureed in briefs, motions for rehearing, petitions for review, and subsequent opinions? Clarity is desirable; oversimplification is not. Caution is desirable; timidity is not. What is the right balance?

Quon’s candor carries lessons for the appellate advocate. Go beyond a simple “I win” and think about the holding or the legal rule that you want the court to write in its opinion. What should it say? Suggest some language. Suggest alternatives. Explain why your language is neither too broad nor too narrow. Explain why it is neither overreaching nor timid. And be prepared to defend your suggestions in response to questioning by a court that needs to consider not just the resolution of your case, but the potential impact on future cases.

For the Ph.D candidates among you, this column contains 1,081 words.

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