I’m delighted to report that Profs. Craig Lerner and Nelson Lund, both leading constitutional law scholars at the George Mason University School of Law, will be guest-blogging this week about their new article, Judicial Duty and the Cult of Celebrity. Here’s the abstract, which should give you a flavor of Lerner’s and Lund’s thoughtprovoking — even radical — proposal:
Judging from recent confirmation hearings, there is now a consensus that Supreme Court Justices should be humble servants of the law, highly respectful toward precedent and without personal agendas of any kind. Few informed observers expect this to happen. After describing some of the institutional factors that operate to discourage adherence to the traditional ideal of judicial duty, this article proposes four statutory reforms that could help the Justices stick a little closer to the promises they are expected to make, and do make, at their confirmation hearings.First, Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.
Second, Congress should require the Court to hear at least one case certified from a circuit court for every federal question case they choose from their discretionary docket. This would reduce the temptation to assemble a docket consisting largely of interesting or high-profile cases, and encourage the Justices to grapple with more of the important but unglamorous issues vexing the lower courts.
Third, Congress should forbid law clerks to draft judicial opinions, and move them to the office of the Court’s Librarian, where they would do legal research for the Court rather than for individual Justices. Truly humble and old-fashioned judges should study the precedents themselves, discuss the law with their colleagues (rather than with their handpicked votaries), and write their own opinions.
Fourth, Congress should require Justices to serve part of their time on lower federal courts, as they did for the first century of the republic’s existence. Restoring “circuit riding” would give the Justices some on-going experience with playing the role of a modest judge whose decisions are subject to appellate review and who is often required to interpret and apply muddled Supreme Court opinions.
If serving as a Supreme Court Justice were to become a full-time, non-delegable job with fewer opportunities for personal aggrandizement, the Justices would behave more like judges than legal celebrities, Presidents would have more incentive to appoint genuinely able people, and fewer Justices would insist on staying in the saddle past the time when they can even mount the horse.
ArthurKirkland says:
Much as truly humble and old-fashioned physicians should rely on bloodletting, 80-proof painkillers and prayer?
Perhaps the prescription for a more modest court is a less-stacked court (six or seven members appointed by a particular party’s presidents). If so, the proper cure may be on its way.
January 19, 2010, 2:25 amKirk Parker says:
ArthurK, what a preposterous analogy. Medical knowledge, technology, and procedures are hundreds of times better than they were circa 1787. Are you saying that the clerks, etc, are that much more knowledgeable than the justices?
January 19, 2010, 5:28 amShag from Brookline says:
Might this recommendation:
“Third, Congress should forbid law clerks to draft judicial opinions, and move them to the office of the Court’s Librarian, where they would do legal research for the Court rather than for individual Justices.”
reduce law school enrollments and the current incentives at top niche law schools to make law review and get great grades to get a clerkship? Who would want to work so hard for such a research job that might not result in higher associate compensation and prestige at large law firms post clerkship?
January 19, 2010, 7:29 amMartinned says:
I already noticed and read this article when it first came out on SSRN. It sounds OK to me, but then, it seems a lot like the way Dutch supreme court justices work. I’d consider myself a legal professional, and I couldn’t name a single member of my own country’s highest court with a gun to my head. (I could name maybe one or two members of the European Court of Justice, as well as a few ECJ and Dutch Attorneys-General, who do sign their opinions, but that’s about it.)
January 19, 2010, 8:17 amepluribus says:
Shag from Brookline says:
I’m not clear why clerking for the Supreme Court as a whole would be worth less on an ambitious lawyer’s resume than clerking for an individual justice. Is it your position that the whole is less than its parts?
January 19, 2010, 8:32 amNaG says:
I can see the fourth recommendation — that the Justices “ride circuit” for some amount of time — as being a viable idea. The main argument against it would be the recusal issue, in that a Justice that hears a circuit case would then have to recuse themselves if the case was appealed. I’m sure the Justices would rather not have that problem.
But the rest of the recommendations seem to be significant changes from how the Court has functioned for most, if not all, of its history. I do not think the Court would seriously consider them.
January 19, 2010, 8:53 amTweets that mention The Volokh Conspiracy » Blog Archive » Craig Lerner and Nelson Lund Guest-Blogging -- Topsy.com says:
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January 19, 2010, 9:32 amSCOTUSblog » Tuesday round-up says:
[...] Craig Lerner and Nelson Lund of GMU Law will be guest-blogging this week at the Volokh Conspiracy on the so-called judicial “cult of celebrity.” To minimize the influence of a justice’s [...]
January 19, 2010, 9:35 amarch1 says:
NaG: “But the rest of the recommendations seem to be significant changes from how the Court has functioned for most, if not all, of its history. I do not think the Court would seriously consider them.”
NaG, I don’t think that Lerner and Lund are proposing that the Court consider them, but rather that legislation be enacted to require them.
January 19, 2010, 9:39 amuberVU - social comments says:
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January 19, 2010, 9:56 amThe law? Anon is the law! « The Lure says:
[...] law? Anon is the law! These all seem like very good ideas (h/t): Judging from recent confirmation hearings, there is now a consensus that Supreme Court Justices [...]
January 19, 2010, 10:30 amMark Field says:
“Riding circuit” was originally required but was abolished in 1801 because the judges objected to it. It was immediately reinstated by the incoming Jefferson administration for what can fairly be described as punitive motives. It remained controversial until it was finally repealed over 100 years ago. In light of this history, I have to believe this proposal is a non-starter.
January 19, 2010, 11:44 amShag from Brookline says:
I cannot give epluribus a prompt response to his question to me:
“Is it your position that the whole is less than its parts?”
I am somewhat aware of the SCOTUS clerk-selection process since I’ve been around the block going back to the early 1950s. And I have read Lazarus’ book on his time as a SCOTUS-clerk. Under Recommendation three, I wonder what the process would be for hiring clerks and who would be the “decider.” Also, how many clerks would there be? And would the clerks be assigned to a research pool? How would they receive their assignments, including from whom? Might there be a “team” approach based upon what happens at conferences? There are many more questions and issues to be addressed by SCOTUS, the individual Justices and law school graduates seeking clerkships. With Recommendation three, might opinions – and strings of citations – be shorter? (Perhaps the anonymity of authorship of opinions under the first Recommendation might bring about such shortening.)
My earlier comment approached this from the viewpoint of the law school student considering a clerkship. The interview process for Recommendation three could get dicey. Would there be ideology-blindness in assessing a particular candidate? I could go on, but perhaps others closer to the scene might address this.
With respect to the Justices, keep in mind how over recent years the numbers of clerks have increased, opinions (which have proliferated) have gotten longer and the SCOTUS caseload has decreased. Also, the Justices seem to enjoy more sociability, like celebrity duck-hunting. How might Justices react to Recommendation three? If implemented, might there be some retirements resulting? Of course, this might eliminate the “cert pools” resulting in even longer working hours for the Justices.
So I shall reserve on my answer. Hopefully others will contribute their thoughts on Recommendation three. Also, some may have thoughts on the celebrity of clerkships as stepping stones to prominent law firms at increased starting salaries.
January 19, 2010, 11:54 amBarrister's Handshake says:
Yessssssssssss, I’ve been waiting for some George Mason professors. Those guys are under represented here. ;-)
January 19, 2010, 12:06 pmGramarye says:
I’m on board with the first and fourth recommendations.
I don’t know enough about the second to be able to form much of an opinion. Would this require some new mechanism for certifying questions from the circuits and/or from state supreme courts? Does such a mechanism already exist, but get largely ignored by the justices and/or the lower courts that could avail themselves of it?
As a former clerk, I’m immediately skeptical of the third proposal. Drafting opinions, even short ones, is a time-consuming process. The logical consequence of this rule would be for the Court to issue even fewer opinions than it already does. Also, I’m not sure what other activities of the justices would have to give way for them to spend more time on the actual drafting, but it seems likely that those other activities are functions that could not be readily swapped with law clerks, nor eliminated entirely.
January 19, 2010, 2:08 pmShannon says:
Perhaps a better way to improve the Court would be for the Senate to require, as a condition of confirmation, that the prospective Justice answer all questions posed by any member of the relevant committees. And by “all”, I mean “all”, including specific questions about specific cases.
Right now, Senate rules (specified nowhere in the Constitution, the confirmation power of the Senate is unlimited and unappealable) place out of bounds any questions that would actually tell the Senators anything worth knowing about a candidate.
The Senate needs to enforce its own powers in this regard. They can confirm or reject any candidate for any reason (or none). A significant part of that unlimited power is requiring honest and full answers to any questions they chose to ask.
It also seems that many of the suggestions here amount to a requirement of additional qualifications for appointees beyond what the Constitution requires. Supreme Court Justices aren’t even required to be lawyers, and this is the same ground on which term limits for Federal Legislators were held unconstitutional by the Court. Of course, those were statutes, and what is being discussed here is simply the Senate imposing its own rules as to who it will confirm. So perhaps these things could be done by internal Senate rules, which they are empowered to define as they see fit, with no review by any other branch… but if done by statute, I doubt it would survive.
IANAL.
–Shannon
January 19, 2010, 3:29 pmChristopher Cooke says:
are these recommendations even Constitutional?? For example, can Congress tell Supreme Court justices that they cannot use law clerks to help draft opinions? Why isn’t that an infringement on the Judiciary’s own inherent authority under Article III? I will say that I do not object to some of these recommendations, just I have my doubts about whether Congress can enact some of them. Maybe the requirement to ride Circuit would be okay, since it was done before.
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January 19, 2010, 9:48 pmArthurKirkland says:
This makes the professors’ proposal sound like a repudiation of American exceptionalism and a pandering to (appeasement of) European elites.
That might be a hard sell in some circles. Any way to work a little torture in there somewhere?
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