Presidential Commission on the Supreme Court of the United States
(such as a rote citation to a legal standard without elaboration on its application to a given case) would rarely provide much useful information.
Yet the question is not whether all emergency orders require detailed explanation; there has been no serious suggestion that routine denials of obviously unwarranted relief need to be accompanied by a written opinion.[41] Rather, the question is whether some emergency orders are important enough (as all merits cases are presumed to be) that the public—and the public record—should receive an express statement of the Court’s reasoning and of how the Justices voted.
Critics and defenders alike recognize that the Court sometimes does issue opinions explaining its emergency orders, and individual Justices even more frequently write opinions concurring in or dissenting from the Court’s orders. For critics of the Court’s orders practices, such opinions demonstrate that reasoned explanation is possible; the problem, in their view, is that it is not provided more regularly in cases of national importance.
Critics argue that the lack of a stated rationale on behalf of the Court—and the lack of full disclosure of the Justices’ votes on emergency orders—deprive the public of valuable information about how the Court and each of its members understands and applies the substantive legal principles at issue in important cases.[42] Similar arguments extend to the procedural rules that govern emergency orders: Critics contend that it is sometimes unclear whether or how the Court is applying the traditional multipart standard used to determine issuance of emergency relief.[43]
Another line of critique focuses on the disciplining function of reasoned opinions. For example, some critics argue that the Court has not followed a straight line on the question of when to grant emergency relief, and that it has been willing to break new legal ground in certain cases while disclaiming that power in others, without explaining the difference.[44] In the critics’ view, the lack of explanation enables such variation by removing the rigor and consistency that the writing of carefully reasoned opinions is said to impose on judicial decisions.
Critics more broadly charge that the issuance of high-profile orders without adequate explanation damages the perceived impartiality and legitimacy of those rulings, or even of the Court, in the public eye: When the Court does not routinely explain its reasoning in cases of great public concern, people may speculate that the Justices are making decisions based on politics.
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