We would first like to thank Eugene for inviting us to summarize and discuss the arguments in our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity. We’re looking forward to comments and constructive criticism from VC’s thoughtful and active community.
The 1987 confirmation fight over Robert Bork gave political salience to the dispute between originalism and living constitutionalism as interpretive methods. Within the academy, that dispute continues, with endless nuances, qualifications, and elaborate theoretical frameworks on both sides. Judging from subsequent confirmation proceedings, however, the debate is no longer relevant to judicial appointments. Nominees of both parties now present themselves as modest and humble servants of the law, respectful of existing precedent and without a desire to move the law in any particular direction. Most Senators on both sides of the aisle accept this as the proper model for judging, and the only real question now seems to be whether a given nominee is sincerely pledging allegiance to the accepted ideal.
Nowhere was the new consensus more vividly on display than in the most recent Supreme Court confirmation hearings. Sonia Sotomayor came before the Senate with a long and fairly bland record as a circuit judge, but also with a history of extra-judicial statements suggesting both that she thinks impartiality is unachievable and that she is untroubled by that reality. When pressed at her hearings, Sotomayor repeatedly and resolutely maintained that she would never do anything except impartially apply the law to the facts, that she had no agenda of any sort, and that she would certainly not allow her policy preferences or her own values to have the slightest effect on her decisions. All of her controversial extrajudicial statements, she claimed, had been misunderstood, or were meant to convey the opposite of what she had said.
Predictably, Republican Senators on the Judiciary Committee suspected a feigned confirmation conversion, and Democrats defended the nominee. But none of them opposed her on the ground that she was pledging allegiance to the wrong ideal. The recent bipartisan paeans to precedent and judicial modesty could reflect an inchoate political consensus that our Justices should behave more like traditional judges. But hectoring nominees at confirmation hearings, or lauding them for their presumed intent to follow the traditional ideal, is certain to have negligible consequences. Can anything more efficacious be done?
Recently, we have seen a flurry of proposals to eliminate life tenure for Supreme Court Justices, a reform that was advocated long ago by a young John Roberts. These proposals are motivated by the view that the Court is no longer functioning, according to its original design, as a genuinely judicial institution. Without disputing the diagnosis, we are skeptical about the proposed cure. For one thing, it would require a constitutional amendment. More significantly, however, it does not address the root of the problem, and if adopted might well merely serve as an incentive for Justices to cram a maximum amount of political activism into a shorter period of time.
Statutes are much easier to enact than constitutional amendments, and Congress could take steps to make our Court less adventurous and more respectful of both law and precedent. In the posts to come, we propose four statutes designed to achieve these ends.
Our effort to think about changing the incentives that operate on the Justices required some analysis of how existing incentives shape their behavior. We reflected on historical developments that have promoted the rise of what we call the celebrity Justice. One engine in this development, we suggest, was Chief Justice Marshall’s innovative practice of elaborately reasoned opinions for the Court signed by individual Justices. This practice has allowed and encouraged Justices to pursue personal glory through opinions that sometimes read less like the work of judges than like political manifestos or pop philosophy. In the twentieth century, moreover, Supreme Court Justices have managed to shed various onerous judicial responsibilities, making possible an ever greater focus on the politically architectonic issues of greatest interest to themselves and to the political, journalistic, and academic elites from which they seek approval.
In crafting our proposals, we drew upon work by Frank Easterbrook, who applied Arrow’s Theorem to structural features of the Supreme Court, and by Richard Posner, who modeled the judicial utility function in economic terms. Despite its substantial merits, Posner’s model does not adequately account for the vast differences between Supreme Court Justices and other Article III judges. The present danger, we think, is that the conditions under which Supreme Court Justices operate make it almost impossible for them to experience their jobs as calling for the kind of modesty and restraint that Posner finds in most judges, and that all Supreme Court nominees promise they will exhibit even as members of the highest Court of the land.
For that reason, we believe that it would be salutary for the lives of the Justices to become more like the day-to-day lives of judges on the lower courts. This need not require an actual reduction of the Supreme Court’s power, as in the case of such reforms as jurisdiction-stripping statutes. Nor need it expose the Court to other forms of external political influence, which we observe in jurisdictions where judges are elected to office or subject to recall. Nor does it require the extraordinary and practically impossible step of amending the Constitution, as in the case of various proposals for term limits.
Rather, we simply propose that the Justices be given somewhat more ordinary judicial work to do, and that a little of the temptation to judicial individualism be curtailed. Our correctives are aimed at creating incentives for the Supreme Court to behave more like a court, rather than as an aggregation of celebrities, and for Supreme Court Justices to behave more like judges, rather than like peers of the realm With these changes, perhaps we might actually obtain some of what recent nominees have thought it wise to promise during their confirmation hearings.
In subsequent posts, we’ll summarize our proposals. Stay tuned.