Not write legal opinions:
Imagine a hypothetical law student, walking the halls of law library in the year 1954. This law student notices on the floor a few pages torn out a Federal Reporter, perhaps 1,000 words in all, but lacking direct information identifying the authoring court. This student sets himself or herself the task of trying to guess whether the opinion was written by the Supreme Court or an Appellate Court. If that student performed as well as our classifier, he or she would have a roughly 70% chance of being right. Transport our hypothetical student to the present day and he or she would almost certainly be able to identify the case, even if the page lying on the floor was from a case that had been selected for review by the Supreme Court.
The point is that the Supreme Court uses a different language and style from that of lower courts. You might say of course it does–it gets more important cases after all–but if so, then why is this a recent, post-1960 phenomenon? What was going on back in the old days?
The politicization of the Supreme Court, its transformation into a political body that uses moral and policy reasoning to resolve society’s most important controversies, is connected to my analysis of the Garland nomination in Slate. Republicans in Congress would be crazy to confirm him if the reason is that he’s a “judge’s judge.” In a political court, the politics of the justices is all that matters.