No, Jack Lemmon and Walter Matthau have not been resurrected. The headline of this post refers to a recent study of opinions from the United States Supreme Court. The study used computer analysis of 25,000 Supreme Court opinions from 1791 to 2008 to spot trends. And they apparently identified three.
First, the more recent opinions are longer. This means more work for Constitutional Law students, but it’s not entirely clear why the opinions have gotten more wordy. According to the New York Times article on the study, the decision in Brown v. Board of Education was less than 4,000 words – about the length of a long essay. The decision in Citizens United had about 48,000 words – the length of a short novel. Perhaps this proves it is harder to justify unlimited corporate spending on political campaigns than desegregating schools.
Second, and this is good news I think, more modern opinions employ a less formal style. So, while modern opinions are longer, they are at least easier to understand. This seems like a worthwhile tradeoff. I remember struggling through some old opinions as a law student. It was easy to get lost in the whereases and heretofores.
Third, and perhaps most interesting, the justices seem grumpier these days. The study checked on how often opinions used “positive” and “negative” words to gauge this trend. The folks behind the study admit this is an imprecise measure, since in the legal world, a seemingly positive word may actually connote a negative sentiment. The New York Times article, for example, notes that calling a justice “adventurous” may not be a compliment. But in any event, five current justices -- Samuel A. Alito Jr., Stephen G. Breyer, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas – claimed spots in the top ten all time grumpy list. Considering this study goes back to 1791, and therefore includes the Civil War, the Great Depression, World War Two and Vietnam, this is a noteworthy achievement. Apparently, Ruth Bader Ginsburg is in the middle of the pack. Which I find surprising based on this performance:
Click here to view video.
But I found the study fascinating. I’m not sure how practioners might use it, other than to gird up for a fight when preparing for oral argument. There is a high grumpiness factor awaiting.