(Nearly) every majority opinion features a short introduction before it jumps into the standard I, II, III, IV, etc structure. Some Justices simply introduce the facts very briefly (Scalia), while others discuss the procedural history (Thomas), and others discuss the underlying issue in the case (Souter.) I took a look at all of the cases from OT 2007 to see if any Justices have a particular stylistic preference.
|Kent. Ret.||5-4||Breyer||Subject Matter||Short|
|John R.||7-2||Breyer||Subject Matter||Short|
|Met. Life||7-2||Breyer||Subject Matter||Short|
|New Jersey||6-2||Ginsburg||Subject Matter||Long|
|Federal Exp.||7-2||Kennedy||Tease Facts||Long|
|Mogan Stanley||5-2||Scalia||Tease Facts||Short|
|Dept. of Rev.||7-2||Souter||Subject Matter||Short|
|Hall Street||6-3||Souter||Subject Matter||Short|
|Wash. St. Gr.||7-2||Thomas||Procedural||Short|
I defined a ‘Subject Matter’ introduction as one in which the author wrote only about the facts of the case and did not mention the court below. See Justice Alito’s introduction in Gomez-Perez v. Potter:
The question before us is whether a federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), as added, 88 Stat. 74, and amended, 29 U. S. C. §633a(a) (2000 ed., Supp. V). We hold that such a claim is authorized.
I defined a ‘Procedural’ introduction as one that included even a brief mention of the ruling below. The main distinction between ‘Subject Matter’ and ‘Procedural’ introductions is that in the latter, the author had to phrase the decision of the Court as a play off of the Court below. For example, in Richlin v. Chertoff, Justice Alito wrote this ‘Procedural Decision’ as the introduction:
The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney. The United States Court of Appeals for the Federal Circuit limited recovery to the attorney’s cost. 472 F. 3d 1370 (2006). We reverse.
Finally, I defined a ‘Tease Facts’ introduction as one in which the author only mentioned (usually very briefly) the facts of the case and omitted any mention of the Court’s ultimate conclusion. Here is Justice Alito’s introduction in Davis v. Federal Election Committee which I categorized as a ‘Tease Facts’ decision:
In this appeal, we consider the constitutionality of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat.
As for length, I defined a ‘Short’ introduction simply as one limited to one paragraph. A ‘Long’ introduction was two paragraphs or longer in length.
An interesting argument could be made for each style. The data suggests that some Justices have a opinion on the matter and that their introductions isn’t simply a function of upon which clerk writes the opinion or the idiosyncrasies of the case in question. Four Justices (Breyer, Stevens, Souter, Thomas) used the same style in each of their opinions and two others (Ginsburg, Alito) made only one exception to their own self-imposed rule.
The ‘Subject Matter’ approach is the most straightforward and easily understood by lay-people reading opinions. A Justice that uses this approach with only a short introduction might be more inclined to decide a case on the fundamental issues at hand. A Justice who uses the ‘Procedural’ approach with a long introduction might be setting up his arguments aimed at technical issues separated from the politically divisive roots of a case. In the end though, there isn’t enough data here to reach any conclusions about why certain Justices prefer certain methods.
Justice Kennedy issued two opinions that defied the criteria I had set up for the three types of introductions that his peers used. In Federal Express v. Holowecki, Justice Kennedy presented some of the facts leading up the case then offered advice to any practitioners or judges who might use this opinion in the future, “[w]hile there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” The phrase itself is not uncommon, but the fact that it was placed in the introduction is unorthodox.
The other curveball thrown by Justice Kennedy was in Gonzalez v. US, where Justice Kennedy did not structure his opinion with an introduction and subsequent sections, and, without sections, I had to use my judgement to decide how far the introductory part of the opinion extends. Luckily for me, the opinion features a decidedly introduction-like presentation of the question at hand before it jumps into what is normally a Section I discussion of the complete history. I’m not sure why Justice Kennedy (or one of his clerks) decided not to use the normal structure. The 8-1 decision (Thomas dissenting) weighed in slightly-underweight at 12-pages and otherwise features the standard components of a majority decision. The average majority opinion from OT 2007 was 19.16 slip pages but an opinion of only 12-pages doesn’t stand out as an aberration. 14 cases from the last term were 12-pages or shorter and all of them except Gonzalez were broken up into sections.
Justices Breyer and Souter both used only ‘Subject Matter’ introductions in their opinions. Even though the cases were written by different clerks, his preference shown through either from their research into his past opinions or from his corrections of the ones they gave him. Justice Stevens, who writes his own opinions, used all three types of opinions in both long and short form.
Justice Scalia’s introductions were always instantly identifiable. In each case, he used the ‘Tease Facts’ approach and his introduction was only a sentences or two long. Take a look at his introduction to DC v. Heller, shown in its entirety:
We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.
All of the Justices except Chief Justice Roberts and Justice Ginsburg preferred to use short introductions (those limited to one paragraph). The Chief Justice was split evenly 4-4 and Justice Ginsburg preferred lengthy introductions in six of her eight opinions. Four Justices refused to use long introductions at all (Breyer, Scalia, Souter, Thomas) and Justice Alito used them only once (Allison Engine Co. v. US.)
In a sign of things to come, Justice Roberts has already employed the ‘Procedural’ route this term in Winter v. NRDC when he declared “[t]he Court of Appeals was wrong, and its decision is reversed. ” In Altria Group v. Good, Justice Stevens used a ‘Procedural’ introduction as well. Hedgpeth v. Pulido, a case decided in a Per curiam decision, was written using the ‘Procedural’ style and was authored by the Chief Justice, Justice Scalia, Justice Thomas, Justice Kennedy, Justice Breyer or Justice Alito. Justices Stevens, Souter, and Ginsburg dissented from that opinion.