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The leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization was an embarrassment to the Supreme Court as an institution. Its perpetrator(s) ought to be found out and censured or punished. But consider the leak in a different light: as an experiment in communications. When the final opinion came out on June 24, there was no desperate casting-about to understand it. Of course there were additional opinions, including the dissent, to absorb. But as to the meat of the opinion, there was no spectacle of Supreme Court reporters flipping pages on the steps of the Court, trying to boil down tens of thousands of words in an instant; there was no unnecessary lack of public understanding of the decision. The nation was not happier. But was it better served?

Viewed in that light, these two articles are well-timed. They are also nicely complementary. One, Barry Sullivan and Ramon Feldbrin’s The Supreme Court and the People: Communicating Decisions to the Public, is comparatively oriented and practical in nature, drawing on other constitutional courts’ experience to suggest some basic improvements in Supreme Court communications. The other, David Fontana and Christopher N. Krewson’s The Rhetorical Power of the Supreme Court, is arguably less practical but more ambitious. It argues that extrajudicial discussion by the Justices about the Supreme Court constitutes a “rhetorical power” that can spur more productive public discussion of constitutional law. These are certainly different approaches. But both articles agree that the Court faces a legitimacy problem that can in, some measure, be addressed by better communication. We may doubt the likelihood of the cure. But the prescription is well worth the attention, practically and for its own sake.

Fontana and Krewson start with the basic premise that the responsibility of democratic public officials to speak comprehensibly to the people extends beyond the “rhetorical presidency” and “rhetorical legislature,” and includes the “rhetorical Supreme Court.” Of course, the Court “speaks” all the time. But its opinions are neither “widely known nor widely understood. If the Justices want to speak to the people they must sometimes speak like the people.”

This, they contend, the Justices have been doing to an increasing degree, by “speak[ing] more about important constitutional issues in public.” This is a good thing: without sacrificing legitimacy, “The Justices can be bilingual: They can speak the technical language of the judicial opinion and the comprehensible language of the layperson,” thus enabling more Americans to take part in our “constitutional conversations.”

Fontana and Krewson develop their argument through a set of interesting studies, surveying reactions to public statements and appearances by Chief Justice Roberts and Justice Sotomayor, as well as a hypothetical appearance by Justice Alito. They find that even a fairly bloodless official statement by Chief Justice Roberts, asserting that “[w]e do not have Obama judges or Trump judges,” had a positive effect on public perceptions of the legitimacy of the Supreme Court. But they are more enthusiastic about the “democratic rhetorical power” of more informal and approachable justices, of whom Justice Sotomayor is their prime example. (Those who have seen Justice Thomas’s public appearances might add him to the list.) Sotomayor, they argue, is effective because she is direct, personal, appeals to her own life experience, and emphasizes her humanity. Such an approach, they find, strongly increases the public’s favorable views of Sotomayor—or of Justice Alito, making a hypothetical appearance using a similarly personal style—and of the legitimacy of the Court itself. Such appearances “can be constructive from the perspective of the democratic situation of the Supreme Court,” creating a more engaged public audience than judicial opinions alone can achieve.

There is a lot to engage with in this paper. I surely have not done justice to it here. There are also many points for potential questions or disagreements. That is only natural, given the article’s ambitious scope. It’s also natural given the paper’s use of terms and concepts—legitimacy, connection, engagement, “the democratic potential of the Supreme Court,” “popular empowerment,” and so on—that defy precise definition and are hardly absolute goods.

One might ask, for example: What is the right level of public perception of the legitimacy of the Supreme Court and its members? I take as a given that there is value in sociological legitimacy—in a general public view that the Court is legitimate. But, as Richard Fallon has noted, we might also think of the Court in terms of moral and legal legitimacy. Personable judges launching a charm offensive on the lecture circuit might unduly improve public perception of the legitimacy of a Court that is not, in fact, particularly legitimate across those other dimensions.

Similarly, what is the optimum level of approachability when Justices speak to the public? Contrasting Roberts’s statement with Sotomayor’s speech, the authors argue that public engagement was limited in the former case because “there was no mention of Roberts’s life story, no example of particular people positively affected by the worldview reflected in his statement, or any other attempt to stimulate.” Surely this limited its public impact. But one might just as easily be grateful for these omissions. We expect what we grow accustomed to. Once presidents started planting carefully scouted “normal people” in their reserved seats at the State of the Union Address, and warmly exploiting them in their speeches, this junk quickly became an annual ritual. It’s effective, but awful. Nor does it ensure that the audience actually understands the state of the union any better—even if it thinks it does. Would Roberts’s statement truly have been better had it included a homespun invocation of boyhood in Indiana? The Court’s opinions could be more readable and much shorter. But there is a lot to be said for not being too approachable and too informal.

I have other questions. Are the statements they examine truly “substantive,” as they suggest, or mostly merely vapid? What does it mean to call such statements and appearances “authentic?” Does it make a difference, in considering their ostensible authenticity, that the most personably oriented appearances by the justices often consist of millionaires hawking their “authentic” books to make more millions? But one may take all this as a compliment. Such questions are a natural consequence of a paper that is commendably ambitious, that brings a variety of tools to its work, and that engages with the question of public appearances by justices on a deeper and more detailed level than most treatments of the subject.

Barry Sullivan and Ramon Feldbrin’s article, The Supreme Court and the People: Communicating Decisions to the Public, is, one might say, equally expansive but less ambitious. It begins from a shared concern: the Court speaks primarily through its elephantine opinions, and its failure to communicate its decisions represents a missed opportunity to shore up its “political capital and legitimacy.” The authors are not, however, concerned with extrajudicial speech writ large, or with the “rhetorical power” of the Court and its members as a broad concept. Their article takes taking the centrality of judicial opinions as a given, while asking how well or poorly the Court disseminates its written work.

Why, to take the example that leads off the paper, did reporters do a poor job in reporting the Affordable Care Act decision? Some of the blame clearly lies with the reporters, who race to be first rather than best. But most of it lies with the Court. Its absurd attachment to a fixed “Term” leads it to issue multiple major opinions in a pile at the end of June, making it harder for intermediaries like the press to absorb and convey the import of the opinions. It offers no formal help to the press in understanding those opinions. Its press officer’s remit is limited. Its default position is to exasperatedly blame the press for errors, as if the Court’s indifferent approach does not contribute to them. It may think its approach maintains the institutional seriousness of the Court and keeps it above the fray. But it achieves the opposite result.

Sullivan and Feldbrin’s contribution lies in the comparative materials they bring to bear on the question of Supreme Court communication practices—and, in contrast to Fontana and Krewson’s deeper theoretical dive and unconventional recommendation, in their insistence on “sensible, possible innovations that would improve the Supreme Court’s communication of its decisions to the press and the people.” It ain’t fancy. But it is refreshingly practical.

Many of the innovations Sullivan and Feldbrin discuss have been noted elsewhere. If anything, it would be astonishing that American constitutional scholars are not more aware of them, were it not for the power of American parochialism. But those innovations are usefully brought together here and explained clearly and well. The authors focus on Germany’s Federal Constitutional Court and the supreme courts of Canada and Israel. All three courts have found ways to acknowledge and enhance “the vital importance of correct, complete, and timely accounts of their work.” All of these measures are achievable here.

In Canada, for instance, the Supreme Court employs an Executive Legal Officer, who briefs journalists about the Court’s opinions on an embargoed and off-the-record basis, so that they are able to describe them accurately when they are issued. It “space[s] out the announcements of its decisions so that reporters [will] not be overwhelmed.” It issues “Cases in Brief:” summaries of its decisions designed to be accessible to the lay reader. And, in an effort to reach Canadians outside of its Ottawa sanctum in a way quite different from the speaking tours of individual American justices, it recently began holding oral argument road-shows. (This comes on top of its longstanding practice of televising oral arguments.)

The German Federal Constitutional Court has compensated for the length and complexity of its written opinions by creating a press office “that regularly prepares press releases with detailed descriptions of selected decisions.” It provides advance access to important judgments on a selective and embargoed basis. And its opinions begin with “leading sentences” that provide a clear description of the judgment, a practice that one commentator calls “far more satisfying and useful than the rambling reporters syllabus” for American Supreme Court judgments. The Israeli Supreme Court has experimented with broadcasting its arguments, and provides “short summaries of important decisions” that are issued at the same time the judgments are released to the public. When the court issued an opinion on the controversial question of the citizenship status of foreigners who convert to Judaism outside of Orthodox communities, it “took the unusual step of releasing a Q&A document…with the deliberate purpose to better explain the reasons for the long-awaited and contested decision to reporters and the public.”

None of the innovations described by Sullivan and Feldbrin are beyond questioning, both on their own terms and in terms of their suitability for transplantation to American soil. Many of these questions would fall under the general rubrics of democracy and elitism. Insofar as the practice of providing advance access to and explanation of its opinions will be selective, involving an accredited or invited press, it may smack of special privilege or elitism in a way that might be acceptable elsewhere but unpalatable here. (I set worries about leaks to one side; Americans are doing just fine on that front despite the lack of advance access. And although leaks like that in Dobbs are extraordinary, the seemingly annual post-Term tradition of individual justices airing their grievances to a few hand-picked reporters is no less elitist.)

Others involve the role of the Court. There is an easily crossed line between “explaining” a court’s decisions and propagandizing on behalf of that court qua political actor, illustrated by the reported hiring of a PR advisor by the president of the Israeli Supreme Court to “improve the Israeli Court’s public image.” The justices of our Supreme Court may care about its perceived legitimacy and public support, but still think its actual legal and moral legitimacy require it to let the people decide what they think about it without any interventions on their part. They may also think that even its perceived legitimacy would lose more than it gained from such an attempt. But of course, that is a form of non-neutral public relations strategy too. As Abraham Lincoln said, if you choose not to decide, you still have made a choice.

Both authorial pairs have made a valuable contribution to discussions of the public-facing approach of the Supreme Court. Just as important, in true peanut-butter-and-chocolate fashion, the roughly contemporaneous appearance of both articles adds a complementary value to each one, and to both taken together. Each provides a different focus. In Fontana and Krewson’s case it is the contribution that might be made by individual justices speaking extrajudicially; in Sullivan and Feldbrin’s case it is what the Court might do institutionally to make its opinions more accessible. Fontana and Krewson bring interesting empirical tools to bear on the issues they raise; Sullivan and Feldbrin employ comparative work to expand our sense of what is possible. Fontana and Krewson offer a valuable theoretical discussion; Sullivan and Feldbrin work in the practical realm. Together, they taste great.

In several senses, both papers are also very timely. The Court’s public approval standing has plummeted. Regardless of its legal or moral legitimacy, its role in the culture wars in a polarized society, and its convenience as a target in partisan politics, will not enhance its perceived legitimacy. The justices are well aware of this and are attempting to respond, at least on an individual basis. It is thus an excellent time to think about what the Court could do to shore up its real and perceived legitimacy.

In another sense, one may ask how much anything could help much right now. I say this not because the current 6-3 majority is disfavored by most law professors and journalists and many others; millions of Americans are delighted by it. But it is entirely possible that on both sides of that divide, the overriding concern will not be with “legitimacy” as such, but with acceptable results. The tendency to put that conversation in the language of legitimacy will only “weaponize” that term, to use the cliché of the day. The Court may find that whatever communications strategy it adopts will be the equivalent of baling out a sinking frigate with a tablespoon. That said, the issue is certainly not going away. Between them, these two articles offer food for thought and viable, practical options.

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Paul Horwitz, We Care, JOTWELL (November 2, 2022) (reviewing David Fontana and Christopher N. Krewson, The Rhetorical Power of the Supreme Court, The Rhetoric and Power of the Supreme Court (2022); Barry Sullivan and Ramon Feldbrin, The Supreme Court and the People: Communicating Decisions to the Public24 University of Pennsylvania Journal of Constitutional Law 1 (2022)), https://conlaw.jotwell.com/?p=1801&preview=true