Stop the ghostwriting, let's go back to orality.

We were just talking about Supreme Court clerks here yesterday, and now there's a New Republic piece by Judge Posner, reviewing two new books on the subject:

Today's opinions are longer--a dubious virtue. There are more separate opinions, most of which are ephemeral. Today's opinions are more polished, more "scholarly," and more carefully cite-checked, but these are modest virtues. Neither judges nor their clerks are scholars. The scholarly apparatus of judicial opinions belongs to the rhetoric rather than the substance of judicial decision-making....

Although today's Supreme Court opinions are no more poorly written on average than opinions from the era in which the justices wrote their own opinions, there is nonetheless a loss when opinions are ghostwritten. Most of the law clerks are very bright, but they are inexperienced; and judges fool themselves when they think that by careful editing they can make a judicial opinion their own.

To say the least! Editing is not writing. You can try to make it look as though you've written something, but unless you've done the drafting, the ideas did not come out of your head. No touch-up job can compensate for the failure to do the real work of composing, of reading the cases and briefs and fitting the ideas together to see if the answers really lie where you intuitively believed. If someone else fits the pieces together for you, you haven't faced up to the lapses and disconnects. Someone has worked to fill in the gaps and make things look coherent.

Am I right to be so suspicious of the Supreme Court's work? It comes out of a black box, and as Posner says, the Court is preoccupied with confidentiality:

The Court's preoccupation with the confidentiality of its internal workings makes an illuminating contrast with the English judicial tradition (now in rapid decline because of caseload pressures) of "orality." Everything English judges did was to be done in public, so that their performance could be monitored. They did not deliberate, they had no staff, they did not have libraries, they did not read briefs: on the bench they read the cases, the statutes, and the other materials that the lawyers handed up to them. (So appeals might take days to argue, which is why the tradition has eroded.) Our Supreme Court (imitated in this by most other American courts) has gone to the opposite extreme, imposing--or attempting with mixed success to impose--a regime of secrecy on the judicial decision-making process.

So, what do you think? Would you like to see a return to the orality tradition? And, of course, it should all take place on television.