Update: I received a response suggesting that I was the one who missed the mark. From Mr. Whelan himself (with his permission):

As I recall it, the practice when I was a law clerk is that the reporter of decisions drafted the syllabus, for review by the authoring justice. Moreover, a long syllabus doesn’t require the difficult editing decisions that a short paragraph would require.

Touché. (Note that this approach conflicts with the publicly advertised explanation, which says only that the syllabus was “prepared by the Reporter of Decisions.”)

It’s no surprise that ultra-conservative writer Ed Whelan doesn’t like ultra-liberal law professor Erwin Chemerinsky. But a recent post misses the mark. Whelan first attacks Chemerinsky for making a “crazy” suggestion that the Supreme Court should justify its cert. denials. Whelan might be kind of right given the volume of such denials each year (although he seems to overlook that a clerk produces a memo on most every case). Yet the real weak spot of Whelan’s analysis is his second attack:

Nearly as bad is Chemerinsky’s idea that “the Court should hire a ‘clear writer’ who would boil each decision down to a single paragraph that would be released along with the ruling.” I don’t doubt that the author of the majority opinion could often do a better job setting forth clearly what the holding of the case is. But why should the justices delegate to a Court staffer the often difficult and controversial task of summarizing the ruling?

The justices, of course, already do delegate to a Court staffer “the often difficult and controversial task of summarizing the ruling.” Mr. Whelan, meet the Reporter of Decisions of the Supreme Court. Among other things, the Reporter of Decisions is tasked with preparing a syllabus that goes at the top of most Supreme Court opinions. The syllabus has one purpose (you guessed it): to summarize the decision. See, e.g., United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 (1906) (“[The syllabus] is simply the work of the reporter, [who] gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports.”).

The role of the Reporter of Decisions might sound like an odd bit of trivia, but it shouldn’t be to anyone who reads a Supreme Court opinion every once in a while. The syllabus is stuck right there at the top of the first page, along with an explanation of who prepared it.

So basically all Chemerinsky is asking for is a shorter, clearer syllabus. Not so crazy at all.

-Michael