In the Opinion of the Court Vol. Although judges feel constrained by law in the content of their opinions, they have complete creative control of their literary styles. They may choose to write for an audience of specialists or lay persons, briefly or at length, clearly or ambiguously, directly or circuitously, in simple language or in paragraphs decorated with figurative or rhetorical devices. They may write narrowly, dealing only with dispositive points, or fill their essays with dicta. Judges may choose to write expository prose, argumentative prose, or political propaganda.
Opinions show more stylistic variation than any other literary genre.
Because judges are free from the commercial constraints that bedevil novelists, filmmakers and all other literary artists, they are free to determine how, and how much, literary variables influence the development of law. But opinions influence public opinion and public policy as well as law. For this reason, we worry when the lower federal courts make it difficult to follow their work by burying us in more than eighty thousand pages of new text each year. And we worry even more when the Supreme Court issues fragmented seriatim opinions which make it difficult to understand the law and even more difficult to teach it. It is not surprising that the impact of style on legal substance is now being studied by policy scholars as well as by literary scholars and lawyers.