Today, we continue where we left off yesterday, summarizing our proposals and arguments for Supreme Court reform in Judicial Duty and the Supreme Court’s Cult of Celebrity.
A surprisingly fateful development in Supreme Court practice was the emergence of a culture of signed majority opinions. Currently, one Justice writes an “opinion for the Court” (or tries to do so: sometimes there is no majority opinion at all) and other Justices trumpet their disagreements in multiple concurring and dissenting opinions.
Historians widely credit John Marshall with raising the status of the Supreme Court from the “least dangerous branch” to a co-equal player in our constitutional balance of powers. One of his decisive, albeit underappreciated, innovations in this regard was to discard the two previously common templates in which the Supreme Court announced its opinions to the general public and to adopt an almost wholly novel form.
First, Marshall pressured his colleagues to end the practice of issuing seriatim opinions, in which each Justice announced his views separately. Even more striking was the demise of brief opinions with no attributed authorship. In the pre-Marshall court, nearly three quarters of the opinions were reported in this latter form; by 1814, the percentage had dropped to 4%.
Having all but eliminated the two dominant reporting practices of the Court’s first decade, Marshall minted his own preferred practice: a unanimous opinion of the Court delivered by the most senior member of the Court by name. This almost always meant Marshall himself, even if he had not written the opinion. To a remarkable extent, Marshall persuaded his colleagues to subordinate personal differences and present a single face—usually Marshall’s own—to the outside world.
Late in his tenure, Marshall’s ability to rein his colleagues in declined, and there was a minor uptick in separate opinions. Justices began more often to state reasons for dissenting, typically noting that the case involved a constitutional question or raised some other issue of significant public interest. But Justice Bushrod Washington portended future developments when he wrote: “A regard for my own consistency, and that, too, upon a great constitutional question, compels me to record the reasons upon which my dissent is founded.” Eventually, Justice Washington’s exception became the rule.
In the short run, Marshall may have strengthened the Court by getting rid of both seriatim opinions and anonymous opinions for the Court that lacked much analytical elaboration. But in the long run, his substitute—detailed, signed opinions for the Court—gave us some of the worst effects of seriatim opinions without the benefits of anonymous opinions.
Some years ago, then-Judge Ruth Ginsburg proposed that “when [circuit court] panels are unanimous, the standard practice should be to issue the decision per curiam, without disclosing the opinion writer.” She apparently did not mean this proposal to apply to the Supreme Court, which is more prone to hear “grand constitutional questions.”
Ginsburg was on to something, but we think she got it backwards. It is precisely because most of the cases heard on the circuit courts are not of great significance that it is useful to preserve the practice of signed opinions. In relatively mundane cases, which constitute the bulk of the docket of any circuit court, naming the author must surely lead judges to invest more energy in composing the opinion, or at least in carefully supervising the law clerk who drafts it. This is probably, on net, a benefit. If one assumes a positive correlation between input by the judge, in time and effort, and the quality of the output, signed circuit court opinions will be better than anonymous ones.
The utility calculus works quite differently with Supreme Court Justices. Thanks in large part to the Court’s discretionary docket, many of the cases decided by the Court involve issues that engage the minds of politically attentive citizens, of the elite journalists who speak to and for these citizens, and certainly of the Justices themselves. For Supreme Court Justices, the subject matter of the cases itself provides a spur to work carefully that is absent from most of the cases heard by the circuit courts. Even when the subject matter is legally mundane, the stakes involved often create a significance that is absent from the more piddling, though legally similar cases resolved daily by the courts of appeals. Thus, there is less need to give Supreme Court Justices special incentives designed to discourage shirking.
We believe the opinion-writing practice of the modern Court needs to change so as to reorient the esteem-seeking element in the utility function of the Justices. The solution we propose is a simple one: by statute, Justices should no longer be permitted to affix their names to the opinions—majority, concurring or dissenting—that they file.
We think a number of healthy consequences would result. First, unable to claim credit for the opinions they write, the Justices would come to regard their reputations as inextricably linked with the work of the Court, rather than with their own personal stock of precedents. This should mean a reduction in the number of unintelligibly splintered decisions that so frustrate the bar, the lower courts, and even members of the Supreme Court itself. Furthermore, unable to claim credit for opinions, we think the Justices would have less incentive to write sophomoric philosophy or ill-disguised political commentary in a transparent effort to have their names emblazoned in casebooks and popular journals. As the Court’s opinions became less frilly and more legal, the press would find it harder to extract a snappy (and often legally irrelevant) sound bite to explain the decision, and this might actually enhance the Court’s reputation as something distinguishable from a body of life-tenured politicians.
We do not propose to prohibit Justices from filing concurring and dissenting opinions. At least in our legal system, such opinions arguably provide some public benefits. They help show that the decision of the court was reached through a deliberative process. They can discipline the majority by exposing weaknesses in its reasoning. And they can usefully inform the bar about issues that are not well-settled within the Court. At some point, however, fractiousness simply reflects the self-assertion of the individual members of the Court. We think that this point has been reached, and that the problem can be ameliorated by an intermediate rule under which concurring and dissenting opinions are allowed, but all opinions must be issued anonymously.
Under our proposed regime, the majority opinion would simply be labeled “Opinion of the Court.” Concurring and dissenting opinions would have similarly nameless attributions: “Concurring Opinion (for two Justices),” “Dissenting Opinion 1 (for three Justices),” “Dissenting Opinion 2 (for one Justice),” etc.
Curious observers will no doubt speculate about authorship, as they already do about some per curiams. But the important point is that this will just be speculation, so the Justices won’t get the satisfaction of claiming credit. In current practice, it is a widely observed norm that no judge can claim credit for an opinion issued per curiam. We think the Justices would probably act in the same spirit if directed to do so by law, and we have no doubt that Congress has ample means to cause compliance if some of them get cute and begin evading it.
silverpie says:
Does this mean that the identities of who voted which way would also have to be concealed? Given an 8-1 vote, it would be pretty obvious who wrote the dissent. (Not to mention style quirks, such as Ginsburg’s not using “respectfully” in her dissents…)
January 20, 2010, 9:48 amAJK says:
Would you let a justice say in an interview “Oh, I wrote Smith“? Could he tell his friends? If so, don’t you think authorship would become known very quickly? Conversely, if not, how would you enforce that?
January 20, 2010, 10:24 amBABH says:
Lerner and Lund have yet to overcome my strong presumption that more information is better than less. Political disagreements are no less real for being resolved in the courts rather than in Congress. Voters should (and do) consider the Supreme Court when choosing a President. I’m not sure that we should try to conceal the politics of the Court.
January 20, 2010, 10:27 amCJColucci says:
I have yet to be convinced that: (A) there is a problem and (B)measures like this will ameliorate it.
January 20, 2010, 10:37 amPensans says:
What about political accountability? How does the public know how the judges nominated by various parties are performing?
January 20, 2010, 11:06 amfrankcross says:
Very creative but how would it be enforceable? If a justice wants celebrity for his or her opinion, the justice could just say (or leak) who wrote it. Given the press coverage of the Court, it’s sure to come out.
January 20, 2010, 11:06 amjelisgito says:
Bush v. Gore
January 20, 2010, 11:26 amMartinned says:
Why does that matter? You can’t fire a judge/justice for voting the wrong way. They shall hold their office “during good behavior”, remember?
Indeed. Claiming credit is not the same thing as authorship being a matter of public record. In some cases, the author may not want to claim credit, especially if, after a while under the new regime, the tradition of not claiming credit becomes part of the judicial ethic, and even if someone does claim credit, the Lerner & Lund proposal would force the justice’s interlocutors to take his/her word for it, since there would be no way to confirm or refute the claim.
January 20, 2010, 11:36 amSmallholder says:
I don’t think the remedy proposed would solve the problem.
If the language of dissents is partly driven by ego – “I want my name in the paper,” removing the name of the writer will not solve the problem – if the writer is ego-driven, he or she will be more likely to use flowery or political language so that they can be recognized. Is there any serious observer of the court who would be unable to distinguish Stevens and Scalia?
January 20, 2010, 11:37 amChris Travers says:
Um….. I am not entirely sure this provides a major benefit and it might actually make the problem worse.
First there are whole disciplines out there dedicated to determining who wrote a document. Philologists could presumably be able to tell if a portion of an opinion was authored by a different justice. While one does not necessarily need to be a philologist to recognize a Scalia concurrence or dissent, I doubt that determining authorship would be all that hard. On the positive side it would provide career opportunities for philologists outside of academia.
Secondly in the absence of named opinions, it becomes easier to blame unpopular decisions on partisan players. For example, imagine if Scalia’s name wasn’t on the Kyllo opinion, or on the flag burning cases. Would the tough-on-crime folks blame Stevens? What about the patriotic right and the flag burning cases? It might actually make it HARDER to get beyond partisan politics on the court.
January 20, 2010, 11:55 amfrankcross says:
Martinned, I suspect that the public would not necessarily have to take the authors’ word, there are other sources for enterprising journalists. But if the justices lied or didn’t want to claim credit, that would not be a good thing. Accountability would go out the window. You are right that there is no direct political accountability, but there is considerable reputational accountability, which judges demonstrably care about.
It is possible that a norm of the new regime could discourage claiming credit but that would only happen if the justices buy into the norm. If they don’t, from the start, the norm would never develop. And if you don’t prohibit justices from giving speeches, it would be hard to preserve anonymity. Opinions by Scalia and Thomas, especially dissents, are not difficult to identify from the content.
January 20, 2010, 11:55 amIlya Somin says:
Many justices write articles and/or speeches expressing their views on constitutional issues (e.g. – Breyer and Scalia who both wrote books on this subject in recent years). Wouldn’t such publications end up revealing how they voted in particular cases? Perhaps the solution is to forbid judges to express their views on such matters publicly. Setting aside possible First amendment problems, I’m skeptical that would be a good idea.
January 20, 2010, 12:23 pmSandy MacHoots says:
If the Supreme Court is doing politics — which is is — giving the public less information about who is doing what is a bad idea. If the suggestion is that mandating anonymity — even if it were constitutional — would lead the court to be less politically active, I disagree. I would expect anonymous opinion writers, like anonymous bloggers, to be willing to say and do things they wouldn’t personally want to take credit for.
There is a possible test of the thesis, though. Check out all of the “do not publish” per curiam state appellate opinions, and check to see whether they are more or less thoughtful and well-crafted than the ones issues for publication. My own experiences is that they’re not, but it’s anecdotal.
January 20, 2010, 12:31 pmJRL says:
Do any state courts of last resort do this or anything comparable? If so, does it make any difference?
January 20, 2010, 12:33 pmNo Name says:
I have a real problem with Congress or any legislature telling the judicial branch how to render its decision.
Did you skip the “separation of powers” part of your civics classes?
“we have no doubt that Congress has ample means to cause compliance if some of them get cute and begin evading it.”
Yeah, I guess you did.
There is not a far trip from the legislature telling the courts HOW to render a decision to telling them WHAT decision to render.
January 20, 2010, 12:36 pmMartinned says:
Well yes, but that is exactly the alleged problem that Lerner & Lund are trying to fix: that the justices are playing for their ideological friends instead of acting as neutral arbitors.
Me, too. Then again, it might not be such a bad idea for Supreme Court justices to be more careful about their public statements voluntarily.
Much of this “personality cult” story has to do with the civil law/common law cultural divide. In civil law countries, judges are usually very careful about their public statements, their opinions/rulings tend to be much more technocratic, even if their authorship is indicated somehow.
Take a look at the top of the Kücükdeveci ruling that was handed down by the European Court of Justice yesterday, establishing the rule that directives can have horizontal effect, i.e. can be relied upon in a suit between citizens, even though the Treaties say that directives have no direct effect at all (“A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”):
That still tells you all you need to know, for example that judge Lindh was the judge-rapporteur, and that she and her staff therefore wrote the judgement. But the only name that might end up connected with this case is the name of the person who took a public stand: the Attorney General, in this case Yves Bot. (I actually wrote “he and his staff”, before I realised that judge Lindh was a woman.)
Even though my background is in EU law, I wouldn’t be able to pick a single ECJ judge out of a lineup, while I would probably be able to recognise a majority of the members of the US Supreme Court. That’s not just because the ECJ has more members, but also because of their tendency to step into the limelight or to avoid it. Like prof. Somin, I highly doubt that that can be fixed with legislation, though it might be worth a try.
January 20, 2010, 12:48 pmMartinned says:
Well, that wouldn’t work. Per curiam and other unpublished opinions are always going to be “less thoughtful and well-crafted”, that comes with the format. That’s why Thomas was complaining so much about the Per Curiams that were released yesterday:
(Presley v. Georgia, p. 4)
January 20, 2010, 12:52 pmmicdeniro says:
When I had an instructor in law school who I thought admired my intellectual abilities, I made sure to signal unmistakably who wrote my anonymous exam answers in his course by using phraseology that he would recognize as mine from in-class exchanges we had. (For example, in a equity case involving a plaintiff named Salmon,I had asked if the maxim that a party can’t come to equity with unclean fins applied; and subsequently used the phrase “unclean fins” (which I crossed out legibly) on the exam.
Surely there would be no way that the great legal minds that sit on SCOTUS would abide a proscription against signing the opinions they wrote without engaging in similar tactics.
January 20, 2010, 1:34 pmmicdeniro says:
When I had an instructor in law school who I thought respected my intellectual ability, I made sure to signal unmistakably that I wrote my anonymous exam answers in his course by using phraseology that he would recognize as mine from in-class exchanges we had. For example, in an equity case involving a plaintiff named Salmon, I had asked if the maxim that a party can’t come to equity with unclean fins applied; and subsequently used the phrase “unclean fins” (which I crossed out legibly) on the exam.
Surely there would be no way that the great legal minds that sit on SCOTUS would abide a proscription against signing the opinions they wrote without engaging in similar tactics.
January 20, 2010, 1:39 pmCory J says:
I’m sure this is a simple question with a really obvious answer, but where does Congress have the power to tell the Supreme Court how to do things like that? I know they have power over jurisdiction and such, but my natural thought would be that administrative matters (if that’s what something like this proposal is) is something left to the Court itself.
January 20, 2010, 1:47 pmCrazyTrain says:
I don’t understand what the problem is you are trying to solve. And naturally, I don’t see what your proposed “solution” (anonymous opinions – huh?*) has to do with it. And even if I did understand what you are trying to address and how anonymous opinions would address it, there are some constituional problems with your proposal. Do you really think Congress has the power to dictate how the Supreme Court writes its opinions? Seriously. It can get that minute about it. And you say that there are many ways that Congress can enforce this proposal, give me ONE example of how Congress can enforce this (aside from impeachment)? I don’t think there are any. And the fact that you don’t name one is quite telling.
*Is there any time in anglo-american common-law history where opinions were routinely anonymous? (Your example of the pre-Marshall Supreme Court (ie about 12 years) is not a good one for many, many reasons.) If so, is there any evidence that anonymous opinions reduced the so-called “celebrity problem” (whatever that is).
January 20, 2010, 1:57 pmCrazyTrain says:
“Esteem-seeking element in the utility function of the Justices”? Really?!? What are you talking about? Dressing up your proposals in smart-sounding econ-like language doesn’t hide the fact that it is unclear what the problem here is. You need to first convince us there is a problem before anyone is going to take your truly unique proposals seriously.
January 20, 2010, 1:59 pmCrazyTrain says:
Yes, this is a simple question with an obvious answer. Congress does not have the power to do this.
January 20, 2010, 2:00 pmAndrew says:
I read through the interesting article by Lerner and Lund, and am happy to make a few miscellaneous comments.
First of all, any reforms like these might be much more acceptable to Congress if they include a “Sunset Clause” that would make the reforms expire after a decade or two. That would provide an opportunity to look back on the experiment and decide if it should be continued. A Sunset Clause is especially needed here because some of the innovations would be unprecedented (e.g. anonymous dissenting opinions).
I think Lerner and Lund overlook some very good reform ideas. For example, in every constitutional case, perhaps the Court should be required to include the full text of the pertinent constitutional provision(s), in the respective sections of the opinion dealing with those provisions. This would focus the Court, and educate the public.
Also, perhaps it would be useful for Congress to explicitly invite SCOTUS to include a section in any opinion, announcing that SCOTUS believes its decision to be unjust or otherwise inappropriate. This would give SCOTUS an outlet to provide narrowly focussed advice to legislators, without stumbling into a generalized advisory opinion, and while also highlighting for the judges that they are not expected to perform judicial review for conformity with their own values.
Regarding the idea of requiring SCOTUS to accept more certifications by the courts of appeals, what would stop SCOTUS from merely doing more summary affirmances?
Regarding the repeated objections by Lerner and Lund to judges spending their vacations overseas, why not simply put a limit on the amount of time a justice can spend overseas each year?
Regarding personal stare decisis versus institutional stare decisis, I don’t think we should overlook that the former can contribute to the latter, in the sense that if no one ever changes his individual mind then the Court will never change its collective mind. I’m, not saying that Lerner and Lund don’t have the better argument, just that they ought to more thoroughly describe the countervailing considerations.
Regarding anonymous opinions, there are advantages to signed opinions that should at least be acknowleged. For example, they allow the presidents who nominated Justices (and the Senators who confirmed them) to be held accountable by the people. And, if an opinion is completely off the wall, then the Justice himself can be held accountable (e.g. by the press, by the academy, by the bloggers, and perhaps even by congressional enforcement of the “good behavior” requirement). Also, a congressional requirement for anonymous opinions would make the Court more secret, and might be deemed akin to a gag rule on the justices. How about this: all opinions of the Court must be per curiam, whereas dissents and concurrences may be either anonymous or non-anonymous but must always be CITED anonymously in any later opinions?
On the issue of clerks, a Justice could set up a private office either inside the Court or at home or elsewhere, which is just how the first Supreme Court reporter, Alexander Dallas, operated (i.e. he had no official position and no official salary). How about merely imposing a minimum age for clerks? Giving huge clerk-hiring and clerk-assigning power to the SCOTUS librarian raises some issues that should be addressed. How would the Librarian be chosen? How could the Librarian be fired?
Regarding the idea of circuit-riding, how about riding through state courts too? If a state invites a SCOTUS justice to sit on a state court, shouldn’t that be possible? After all, much of the Court’s work nowadays involves judicial review of state laws rather than federal laws.
Regarding the idea of limiting the number of certiorari grants to the number of certification grants, that limit should not apply if the Court accepts ALL certification grants (otherwise, the circuit courts might only certify one or two cases per year and thus severely crimp the ability of SCOTUS to grant cert). Also, maybe instead of certifications, we should only be talking about certifications that involve a circuit split? Those are the key cases that SCOTUS could most usefully address.
Okay, that’s it for me! Cheers.
January 20, 2010, 2:02 pmMartinned says:
At the time of founding and before, the practice concerning reporters was much more sketchy than later. Individuals reported opinions they thought were important, but not always verbatim, i.e. as they were read out from the bench. Sometimes they reported the arguments of parties, which the judges/justices were then reported as agreeing with. For example, the famous dictum in Somersett’s Case that “the air in England is too pure for any slave to breathe” came from counsel, not from Lord Mansfield. (Though in that case, if I understand wiki correctly, the judgement was also reported.) Anyway, whether the name of the judge was mentioned was entirely up to the reporter, and presumably depended on the renown of the individual in question.
January 20, 2010, 2:06 pmMartinned says:
I don’t see why not. Some of the things Lerner & Lund mention are already part of statute law, like the clerks (28 USC 675). This, for example, is what the law says about the reporter of the Supreme Court:
I don’t see why Congress couldn’t add a clause there forbidding the reporter from revealing the authorship of opinions. That would not be enough to safeguard anonymity as proposed, but similar clauses could be included elsewhere to take care of that. I don’t see how any of this would be either unusual or ultra vires under the necessary & proper clause.
January 20, 2010, 2:17 pmfrankcross says:
Martinned, reputational accountability is not about playing to ideological friends. It’s about issuing well crafted, responsible opinions for the bench and bar. Surely the internet shows how anonymity lowers the quality of discourse.
I think this approach might make more sense in a Continental career judiciary, without any tradition of judicial celebrity. But once the genie is out of the bottle, I don’t think she can be stuffed back in.
January 20, 2010, 2:22 pmMartinned says:
I definitely agree with the second part (see above).
As for the former, I think the accusation by Lerner & Lund is that the justices care too much about the approval of their ideological friends, including the party that nominated them, and their allies in academia. Whether that accusation is true is an empirical matter, and one that I think cannot be evaluated very easily.
(Obviously Scalia would still be as outspoken if he weren’t allowed to sign his opinions. That’s part of US/Common Law legal tradition. How do you separate playing for the stands from general attitude towards opinion writing?)
January 20, 2010, 2:54 pmMark Field says:
The only source of such power would have to be the Necessary & Proper clause.* AFAIK, few people believe that clause extends this far. Who, for example, believes that Congress could tell the Secretary of Defense that he can’t speak in public?
*”To make all laws which shall be necessary and proper for carrying into execution … all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
January 20, 2010, 3:40 pmMartinned says:
Well, the problem with that example would seem to be that it violates the first amendment, while a restriction on justices’ ability to sign their opinions arguably would not.
The only way to assess whether the proposal made in the OP would be possible under the necessary & proper clause is to compare it to the kind of regulation that already exists. Since Congress has already seen fit to regulate the Supreme Court’s clerk, their clerks, the reporter, their terms, etc., I don’t see what would be so unusual about regulating the manner in which their opinions are published.
January 20, 2010, 3:43 pmliamascorcaigh says:
This proposal seems on one level to be an elaborate plan to dismantle Justice Scalia’s “bully pulpit” especially in the light of the authors’ anxiety concerning the role of egotism in contaminating the jurisprudential purity which they have persuaded themselves should be of the essence of Supreme Court opinions. While all nine have, no doubt, robust egos – even St. Francis could hardly resist the spiritually enervating force of such power and eminence – only Scalia takes his amour propre for regular public promenades in such a fashion as to attract in equal measure the admiration and disdain of an ideologically fragmented populace, the vast majority of whom would happily drive a spike through their brainpan to avoid exposure to the intricate and learned flapdoodle which the more exalted yet less colorful members of the legal profession employ in defense of the resources of our civilization.
Absent such a purpose, their proposal is daft. To expect nine Americans of any kind, not chosen exclusively from among the professed residents of a Trappist monastery, to impose a kind of purdah upon themselves when performing such solemn Solomonic functions is like betting your house and second best bed on the Chicago Cubs winning the World Series, in a clean sweep, three years in a row – against the Yankees.
Anyway, such a thing is positively unAmerican. I spy a very luminous penumbra and two quite strong emanations in the US Constitution that require every citizen of the jurisdiction to conduct his business with all due in-your-face bloodymindedness, the self-assured gusto of a rutting moose and an unbending conviction that the other fellow is a nincompoop and in dire need of a visit to the woodshed.
The spirit of Burr and Hamilton still lives.
Let’s not spoil the fun.
January 20, 2010, 4:16 pmNo Name says:
There is a massive difference. The decision and opinion is quintessential element of the adjudication process, particularly in appeals. Any law that would attempt to declare what form that decision or opinion takes would violate the separation of powers. The examples you give are a question of what personnel the Court may have and when or where they may sit. Any attempt by Congress to restrict the opinion writing of the Justices or of any court would be to too greatly encroach on the third branch.
Again, did everyone here forget about the separation of powers? Wow.
January 20, 2010, 4:36 pmNo Name says:
As for the idea put forth of having U.S. Supreme Court justices sit on state courts of last resort, I find this problematic.
1) Every state constitution or statute book dictates the qualifications of an individual to be a member of the court. Every single one requires the person be a resident of the state and admitted to the practice of law there.
2) Most require the person be elected or appointed to the court (exception is when the chief justice is allowed to bring up a lower court judge or bring some judge out of retirement).
3) Both the U.S. and state constitutions prohibit holding another office.
Other than that, great idea.
January 20, 2010, 4:41 pmyankee says:
I certainly agree with A. I can’t say anything about B, though: since I can’t figure out what the problem is supposed to be, I can’t tell if this proposal would fix it.
January 20, 2010, 4:47 pmMartinned says:
You mean after Congress has already used its power to establish tribunals inferior to the supreme court, has made laws governing their jurisdiction, the kinds of writs they may issue, the manner in which cases move through the judiciary, how many judges and justices sit on each panel, the way the judiciary at various levels may carry out its own rulemaking, and has approved the nomination by the President of every single person sitting on every single Article III court in the country? No, I didn’t forget…
January 20, 2010, 5:09 pmSuperSkeptic says:
I am inclined to agree with those who cannot identify a problem here (besides politics in judging; but if that is the case, imagine if legislators routinely voted anonymously, particularly on an important bill…). “Celebrities” are neither good nor bad – but we definitely know what they’re up to on a daily basis here in America. As a citizen, I’d prefer knowledge by far to ignorance and secrecy – especially in government (and in our era of “transparency”). Then again, I’m against the secret ballot too…
As a lawyer, knowing names and ideologies helps to understand the trends, doctrines, etc.
January 20, 2010, 6:06 pmAndrew says:
I’m not sure that anyone here has put forth the idea of having U.S. Supreme Court justices sit on state courts of last resort. But, having a SCOTUS justice sit on a lower state court (while riding circuit) might be something that a state would want to do, not least because the state would not have to pay the cost of a judge in such cases. Also, wouldn’t it be wonderful to show up at court for a speeding violation, and have it decided by a U.S. Supreme Court justice? Such a thing could be done if and only if a SCOTUS justice is licensed to practice in a particular state, and of course this assumes that a state constitution allows it.
January 20, 2010, 6:14 pmNo Name says:
And no state constitution does allow it. Moreover, the U.S. Constitution and state constitutions prohibit holding any other office while serving as judge. Again, whether it is limited jurisdiction, general jurisdiction, or appellate, every state requires that the judge be a resident AND/OR admitted to the practice of law in the state.
See Tables 5 (Appellate) and 7 (Trial) here
January 20, 2010, 6:28 pmhttp://bjs.ojp.usdoj.gov/content/pub/pdf/sco04.pdf
epluribus says:
liamascorcaigh:
I love this kind of writing. Multisyllabic words. A plethora of subtly evocative adjectives and adverbs. Compound sentences. Similes and metaphors. Did you write this with a dictionary at hand, or did it just flow naturally from the fecundity of your adumbrations?
January 20, 2010, 6:30 pmAndrew says:
That’s why I said: “Such a thing could be done if and only if a SCOTUS justice is licensed to practice in a particular state.” Anyhow, regarding whether a person can hold two government jobs, are you saying that Supreme Court Justices therefore cannot ride circuit at all?
January 20, 2010, 6:34 pmJHUbme_24 says:
Wouldn’t anonymity lend itself to judicial horsetrading? Who would know if it occurred? Indeed, if Justices were forbidden from disclosing authorship in any forum, it seems that we could never know.
January 20, 2010, 6:39 pmMichael Wasserman says:
I would go one or two steps further: First, there should be one “opinion” of the court, but that single opinion (more an explanation) should state the various views that the justices held, though without naming names. Thus, on points of divided opinion, it would state something like “The greater part of the court believed …, though some thought ….” I think that a single statement would be a service to the bar and the public, and the task of forging it might ameliorate the heat that sometimes suffuses today’s separate signed opinions.
Second, I think that the the Reporter should be required to render an independent summary of the facts disclosed by the record and the arguments made by counsel. This was the traditional office of the reporter, before they became wholly-owned creatures of the courts they served, and thereafter virtual ciphers who do no more than proof-read and digest the work of the judges. With opinions being more and more works of advocacy than considered judgments, the actual arguments made and even the very facts of the record are passed over or distorted. An independent view should be made available and the most logical–and traditional–source is that of the reporter of decisions. To that end, perhaps the reporter’s position should be for a fixed term, without eligibility for reappointment and removable only for cause.
January 20, 2010, 7:23 pmCrazyTrain says:
What about the problem of the “celebrity executive branch”?
In the Golden days of the Republic before that pesky Monroe, presidents did not encourage others to refer to their foreign policies by the President’s name — eg, the Monroe Doctrine, the Truman Doctrine, the Reagan Doctrine, the Clinton Doctrine, the Bush doctrine, etc.
Now two law professors decide that the real problem with the executive branch is egotistical presidents who want to be “celebrities” and take personal responsibility for foreign policy accomplishments rather than advancing the institution of the presidency (as they did in the Golden Age before that Monroe guy). So, the two law professors propose a law: No executive branch official (including the President) may refer to their foreign policy by the President’s name (ie, no Obama doctrines, etc.).
Constitutional? Of course not, Congress has no power to tell the executive branch how to characterize their policies and has no power to tell the President not to take credit for his work. Now, why is it any different with this silly proposal that Judges should not be able to sign their opinions?
January 20, 2010, 7:54 pmAndrew says:
If the problem is justices’ use of their positions to push their political views, I think this proposal will increase it rather than solving it. A judge who issues his or her opinion anonymously has little to no incentive to follow the law.
January 20, 2010, 7:55 pmSandy MacHoots says:
Maybe I’m wrong, but I think you just confirmed my point. Where opinions are not attributed, the quality goes down dramatically.
January 20, 2010, 7:57 pmCrazyTrain says:
And don’t get me started on their idea that Justices need to “ride circuit” purportedly so the Justices know what it’s like to apply difficult Supreme Court precedent. Every single Justice knows what it’s like to have to apply difficult Supreme Court precedent as a circuit court judge because every single sitting Supreme Court Justice happens to have been a Circuit Court Judge for a significant amount of time (I believe Roberts had the shortest tenure on a circuit court, and that was for about 5 years).
January 20, 2010, 8:01 pmAlan says:
“First, unable to claim credit for the opinions they write, the Justices would come to regard their reputations as inextricably linked with the work of the Court, rather than with their own personal stock of precedents.”
This would only heighten their arrogance, by subsuming their very identities under that of the Court, thus officially rendering them the equivalents of the institution in which they serve, and giving still more prestige to whatever stupid thoughts they (especially Kennedy) have, by (even more strongly than now) equating those thoughts with the pronouncements of the institution itself. “The Court, c’est moi.”
Also, I think the public has a right to know which justices it would like to see impeached for their decisions. I’m not necessarily saying that some justices should be impeached for their decisions (although it would be stupid to say that impeachment is never warranted no matter how far afield of the Constitution our justices go), but the public has a right to be informed about who’s doing what in our government.
The proposal would also diminish our understanding of the particular justices, by eliminating our ability to examine any particular justice’s body of work over a long period of time. There is no evidence whatsoever that we’d have any benefits (let alone sufficient benefits) to compensate for the loss of much interesting information about particular justices’ work.
“This should mean a reduction in the number of unintelligibly splintered decisions that so frustrate the bar, the lower courts, and even members of the Supreme Court itself.”
This is a huge non sequitur. There is not a shred of evidence that splintered decisions result from anything other than the justices’ own refusal to sign on to various rationales that they dislike. The idea that this would diminish because the justices won’t be identified by name but will instead see their personal identities supplanted by their official identities as members of the Court, is insupportable. If anything (and that’s a big “if”), the stronger their identification with the institution they serve, the greater will be the perceived need to “get it right” by not signing on to unsatisfactory rationales just because four other people on the Court signed on to those rationales.
“At some point, however, fractiousness simply reflects the self-assertion of the individual members of the Court. We think that this point has been reached, and that the problem can be ameliorated by an intermediate rule under which concurring and dissenting opinions are allowed, but all opinions must be issued anonymously.”
If that fractiousness is because the justices sincerely believe that their colleagues are wrong, then they should continue that fractiousness. Justices take an oath to interpret the laws, not to defer to others’ interpretations of the laws even when they don’t agree with those interpretations. The Buddy Bears mentality has no place in courts of law.
The irritation that these occasional split opinions cause is not so great as to justify this reckless experiment. We have no idea what the results of the experiment will be, and it’s not like we’re getting splintered opinions every three cases.
Finally, who gives a care if the bench and bar are irritated by the splintered opinions? Were they irritated by having seriatim opinions, which would obviously be much worse than the modern problem of splintered opinions? If they were, there’s no reason to believe that the system suffered because of it; so let today’s bench and bar grow up and act like adults instead of like children who are being forced to take a trip to the barber. Sometimes the splintered opinions lead to utterly incomprehensible results (I think the Hein case from 2007 would be an example), but there’s no evidence that they’re unworkable and incomprehensible most of the time, in part thanks to the guidance of the Marks decision (and in part thanks to common sense, which I believe predated Marks). And there certainly are majority opinions–non-splintered majority opinions–that are incomprehensible as well. So how much of a problem is posed by the existence of splintered opinions specifically because they’re splintered? (Even assuming for argument’s sake the highly contestable view that making judicial opinions anonymous would lead to fewer splintered opinions.)
January 20, 2010, 8:14 pmMartinned says:
No, it’s the other way around. When the justices feel that a detailed, high-quality opinion is not necessary, because the issue is fairly straightforward, they issue a per curiam. So you can’t study the effect of attribution by name on opinion quality by comparing regular opinions and per curiams, since the latter are supposed to be of lower quality. It’s like comparing SSRN papers and published law review articles in academia: there is supposed to be a difference in quality.
January 20, 2010, 8:25 pmAlan says:
I’d also add that when you take away justices’ ability to attach their names to their reports, you might well spur them to redouble their efforts to do something grand (whether or not dispassionate reflection would commend the deed as faithful intepretation) to make their mark on the law. Lerner and Lund clearly think that the ego factor is driving justices to writing opinions in ways that they wouldn’t write if they had to write them anonymously, and they clearly think that the ego factor is driving justices not to join others’ opinions (see their discussion of “splintered opinions”). Do they seriously suggest that the judicial ego–so strong as to motivate behavior that Lerner and Lund clearly despise–can be tamed merely by telling justices not to put their names on their opinions?
If the justices are as egotistical as Lerner and Lund clearly think, then if those justices can’t get their ego fix from putting their names on a grand opinion, they’ll look elsewhere for their ego fix, by fighting harder for reform that’s more political than judicial, so that they can tell themselves they made the world a better place, even though they can’t tell the public. If they can’t tell the public, and thus can’t get the celebrity they seek, will their egos simply disappear like the Cheshire Cat? No. If they’re that egotistical, they’ll compensate for the ego fix they’ve lost, by fighting harder for more reforms to make themselves proud.
January 20, 2010, 8:25 pmMartinned says:
…except the votes of the other justices.
January 20, 2010, 8:26 pmSwan Trumpet says:
Point well delivered. It’s troubling that Lerner and Lund don’t appreciate that the reason the Court receives lifetime appointments is because they are supposed to render opinions devoid of political influence. Having the Justices run for elections or even go through a confirmation process every few years would force them to consider political consequences instead of remaining focused on the constitutional framework.
Their task is not to exercise their wisdom but merely to utilize an analytical process to ascertain the law according to the framers’ intentions or principles derived thereof. Their task is to be consistent masters of a tradecraft, not to substitute their personal preferences for those that ratified the Constitution.
January 20, 2010, 8:32 pmMartinned says:
I noticed in the Carolinas case today how they kept talking about “our decision in New Jersey v. New York (1920)”, so I guess the ship has pretty much sailed on that one.
[gasp!] Are you calling the Constitution stupid? I would be the last one to follow the common American trend of treating the Constitution like holy scripture, but until they change it, you can’t impeach a justice for their decisions.
Otherwise, I pretty much agree with what you’re saying.
January 20, 2010, 8:33 pmAlan says:
Just because you can’t have a perfectly sterile operating theater doesn’t mean you should do the surgery in a sewer. Likewise, just because the justices say “our” and “we” to refer to groups of justices who died long ago doesn’t mean it’s defensible to push them even further into the fantasy world where they and the Court are one and the same.
January 20, 2010, 8:38 pmAlan says:
Gasp! And which provision of the Constitution says that no matter what the justices do in their judicial role, they can never be impeached for it? My copy doesn’t mention that. Can you show me yours?
January 20, 2010, 8:39 pmMark Field says:
Signing your name to something you wrote would seem to involve 1A issues too.
But I had in mind the separation of powers issues it would raise. While Congress does have a great deal of power over the other 2 branches, there is a limit at the point where its acts try to do the others’ jobs. This suggestion is one of those situations.
January 20, 2010, 8:41 pmAlan says:
I’ll assume you’re referring to that.
Suppose a justice tries to issue an injunction prohibiting the President of the United States from vetoing a certain bill. You think we can’t impeach the justice for that grotesque abuse of power?
What if the Court, citing the Preamble to the Constitution as authorizing the Court in doing anything it thinks will advance the cause of justice, orders the destruction of all nuclear weapons in this country?
What if the Court holds that its members are constitutionally entitled to a pay raise?
What if the Court enjoins the President to perform sexual favors on the justices, citing the Due Process Clause of the Fifth Amendment?
What if the Court orders a tax increase to pay for programs that it feels are being underfunded?
There obviously can be occasions when a decision is so clearly indefensible, so clearly an outrageous power grab, that it should be the basis for impeachment. The idea that no matter how intrusive the Court becomes, its members can never be impeached for violating the Constitution, is just sick. “Good behaviour” is not consistent with making decisions that any idiot can tell are wrong. The only question is when that line is crossed. Under your approach, there is no line.
And I’m very much aware that some of the examples I provided are very similar to various abuses that have been, or are being, perpetrated by judges. I think it’s a shame that those judicial tyrants haven’t been forced out of their jobs.
January 20, 2010, 9:02 pmMartinned says:
@Alan: I would argue that in all those cases the remedy contemplated by the constitution is for the other two branches to refuse to carry out the justices’ ruling. After all, each branch has an independent obligation to obey the constitution, to see that the laws be faithfully executed. I think if the authors of the constitution intended to include behaviour on the bench among the grounds for impeachment, they would have said so expressly. It doesn’t seem like the kind of insignificant detail that you would just stick in with the general phrase of “good behaviour”.
Incidentally, Findlaw has a discussion of the inherent vs. statutory power of the judiciary in its annotation of article III. I’m still not sure where requiring anonymous opinions falls on that scale, though.
January 20, 2010, 9:24 pmAlan says:
Grossly exceeding constitutional authority is an “insignificant detail,” you say? Wow. I guess you’re hard to faze.
I can’t imagine anything more absurd than a constitutional scheme in which a justice could be impeached for stealing a purse but not for stealing powers undeniably withheld from him by the Constitution. Your contention that such a power “would have [been] said expressly” could be equally well applied to your assumption (which I agree with) that the other branches have the right to disobey the courts–the courts that might well be said to have (and have been said to have) the last word on interpreting the Constitution. Not everything need be said expressly. Some things are so obvious that they go without saying.
What WOULD have to be said expressly in order to be deemed part of the Constitution is your idea that “good behaviour” is consistent with issuing undeniably wrong and usurpatious decisions.
January 20, 2010, 9:53 pmMartinned says:
Well, that’s irony. I guess it doesn’t work for everybody.
The judiciary is – as you will know – the weakest of the branches, controlling neither the purse nor the sword. If they do something clearly unconstitutional, that is a nullity, not worth the paper it is written on. If it were possible to impeach a justice for voting wrong, that power could be used to create political influence over the court, something the entire rest of Article III goes to great lengths to avoid. Stealing a purse, however, is a crime for which a justice can be tried and punished just like any other citizen, at which point Congress can decide to impeach or not.
January 20, 2010, 10:06 pmAlan says:
The judiciary has neither the purse nor the sword, and yet the judiciary seems to have been the biggest mover for social change, far more influential than either Congress or the executive. Not bad for what’s supposed to be the weakest branch.
In theory it’s the weakest. In practice, not so much.
Whereas treating the Court’s rulings as a nullity, as you recommend, does not? That doesn’t make any sense at all.
Impeachment isn’t dependent on a prior criminal prosecution. Impeachment is itself an accusation of improper conduct. (Improper, not merely illegal. Unless you think, for example, that the president can’t be impeached if he simply stops showing up to work, which is not a crime at all.) In any event, there is no greater failure of proportion than a system that shields the greatest abuses of power from impeachment. It makes no sense to immunize judges from impeachment for unquestionable abuses of power that undermine the structural integrity of our government, while saying that they can be impeached for far more minor misconduct.
Judged even by the most liberal standards, the phrase “good behaviour” simply can’t be interpreted broadly enough to include conduct that anyone can tell is an abuse of power. You haven’t answered this. The conclusion follows that an undeniable abuse of power is an impeachable offense for a judge.
January 20, 2010, 10:37 pmMartinned says:
Personally, I don’t think the judge’s decisions count as “behaviour”. As for precedent, there’s a full list of all proposed impeachments of federal judges and justices here. I have neither the time nor the desire to go over them myself, but you’re welcome to it. I’d just like to point out that the only SCOTUS justice on the list, Samuel Chase, was proposed for impeachment based on his performance as a trial court judge, and subsequently acquitted. The question is whether this was because he was innocent, or because the senators thought it was unconstitutional or otherwise inappropriate to impeach. This is what wiki says:
January 20, 2010, 10:59 pmAlan says:
That’s an implausibly narrow interpretation of “behaviour.” Behavior means the things you do, which encompasses absolutely everything except for pure thought.
On your logic, if federal judges were performing their duties in an ADMITTEDLY biased way (e.g., a district-court judge writing in an opinion that a witness shouldn’t be believed because he’s a Republican or a Democrat), you’d still say they couldn’t be impeached.
Also, I notice that you just ignored the inconsistency I mentioned in your position that it’s okay for the other branches of government to disobey usurpatious decisions but not okay to impeach judges for those decisions.
Every single time this debate comes up, everyone acts as if the independence of the judiciary is more important than everyone else’s constitutional authority–the president, the Congress, and the states. It’s always, “You can’t do that! That undermines the independence of the judiciary, which Article III guarantees!” And leaving the political branches impotent to punish undeniable abuses of judicial power undermines the authority that the Constitution guarantees to THOSE branches and to the states. Why is that better?
It would make far more sense to break the tie between these competing claims by acknowledging the plain and simple truth that decisions falling outside the bounds of reasonableness–decisions that any fool can tell are a judicial power grab–are not “good behaviour,” and are thus impeachable offenses.
January 20, 2010, 11:12 pmStupido says:
So for almost two centuries of continuous practice by the highest tribunal, I now learned from an internet blogger that the same was flawed.
January 20, 2010, 11:26 pmAlan says:
Oh, so that’s why I’m wrong. Good answer, Stupido. Why actually engage the substance of anyone’s points when you can just make a mindless ad hominem argument?
January 20, 2010, 11:31 pmMartinned says:
I think he meant the original post. It’s still an ad hominem, just not one directed at you.
The judge would be appealed or outvoted. That’s the built-in system for dealing with such problems.
Ignoring an unconstitutional decision has an effect only within the space of that specific dispute. Undermining the independence of the judiciary affects all disputes, or at least all disputes in which the other branches have a stake.
Actually, earlier in this thread I argued that Congress and the President do have the power to make a law that says that SCOTUS opinions have to be anonymous, so it’s not like I’ve been arguing against all power of the other branches over the judiciary.
I beg to differ. The risk of political influence is too great, while the problem you’re looking to fix – the problem of “decisions falling outside the bounds of reasonableness” – is too hypothetical. Do you have any examples? Dred Scott? Presumably that’s the most reviled decision in the history of the Supreme Court, but I don’t think it is “outside the bounds of reasonableness”. Plessy v. Ferguson? Ditto.
January 20, 2010, 11:42 pmAlan says:
No, can’t be–he said “an Internet blogger,” which is singular, and the original post was written by two people.
January 20, 2010, 11:43 pmAlan says:
That only solves the problem in the particular case. It doesn’t solve the problem that it’s dangerous to leave that kind of person in the position of authority in the future. With regard to trial judges, remember that their rulings on all sorts of issues are treated quite deferentially on appeal. With regard to appellate judges, you can’t just assume that they’ll be outvoted if they make an indefensible ruling. Some rulings have been clearly indefensible, yet have been majority, or unanimous, rulings.
January 20, 2010, 11:47 pmAlan says:
There’s no basis at all for the bald assertion that ignoring an unconstitutional decision wouldn’t have ripple effects on the independence of judges.
January 20, 2010, 11:49 pmAlan says:
That simply doesn’t answer what I said. On the specific issue of whether judges can be impeached for truly indefensible rulings, you answered in the negative, and based your answer on the importance of protecting the judicial independence guaranteed by Article III. But allowing federal judges to keep their jobs even when they unquestionably encroach on the powers of the other branches of government, or of the states, you’re treated judicial independence as more important than the protection of everyone else to whom the Constitution assigns power.
January 20, 2010, 11:54 pmAlan says:
Issuing an unquestionably wrong decision is unquestionably inconsistent with “good behaviour.” As for the risk of political influence, look at all the political influence that the courts are exercising in so many different areas of law. Why is the CERTAINTY of having all that political influence preferable to the RISK of having some politically motivated impeachments? And how big of a risk is it exactly? You say it’s too big, but how big? You need two-thirds of Senators to agree to remove a judge! Getting two-thirds of Senators to agree to that, in a case where the decision was defensible, would require both (1) an immensely unpopular decision, and (2) an immense abdication of responsibility by two-thirds of the Senate. That is not a huge risk–especially not when compared to the absolute certainty that courts have taken far too much power away from legislatures.
Examples? How about Hecht Co. v. Bowles? How about Steelworkers v. Weber? (For these, I’ve chosen cases of statutory interpretation.)
January 21, 2010, 12:02 amAlan says:
Additionally, even if a judge’s admittedly biased opinion were corrected on appeal, I think it would be wrong to attribute to the Framers an intent that the judge should still be permitted to remain on the bench and get paid, effectively for life, after demonstrating admittedly biased behavior. It would make more sense to give the phrase “good behaviour” a more natural, literal, interpretation, as including what judges do in their judicial capacity.
January 21, 2010, 12:11 ammls says:
I haven’t given much thought to the problem of a celebrity culture at the Supreme Court, but Professors Lerner and Lund gave me a new perspective when I read the following from this morning’s Law.com:
“The long wait for the Supreme Court’s ruling in Citizens United v. Federal Election Commission may soon be over. At the end of oral arguments Wednesday morning, the marshal of the Court announced the justices would return to the bench at 10 a.m. today — a rare if not unprecedented Thursday session for the Court. Unless the Court really wants to pull a switcheroo on an anxious nation, the session will almost certainly be the platform for announcing the Citizens United decision on campaign finance regulation, which was argued in a special session Sept. 9 and appears to be the only pending case that would warrant such special arrangements.
Now that a Thursday session is planned, it’s fair to ask: why not wait until Monday, when the Court was already scheduled to sit? It will be the third Monday of its argument cycle, when it will not be hearing arguments. One answer may point to possible multiple readings from the bench today. On third Mondays, when no arguments are scheduled, justices sometimes do not show up, having already packed their bags and headed off for travel during the period before the next session. If one or more of those justices had planned to read a dissent from the bench, they might have lobbied for a special sitting today before they left town. Justice John Paul Stevens, for example, may have already made plans to head to his Florida condo where he often spends his off-bench days. So Stevens may have a dissent to read — or, perhaps, a majority opinion.”
January 21, 2010, 6:48 amMartinned says:
@Alan: The best way to settle this is to look at precedent. According to SCOTUS case law, impeachment decisions are non-justiciable, so precedent is all we have. Here are some successful impeachments, from the list I linked to above.
1804: John Pickering:
1804: Samuel Chase (acquitted): See above.
1830: James Peck (acquitted):
1904-05: Charles Swayne:
1913: Robert Wodrow Archbald:
1926: George English:
1936: Halsted Ritter:
1986: Harry Claiborne:
While I’ll be the first to admit that this kind of wiki-research hardly qualifies as proving anything, my sense is that Federal Judges aren’t generally impeached for “unlawful rulings”, the precedent of Judge Pickering notwithstanding. More commonly, they are impeached for felonies, even if the criminal prosecution failed, or for “bringing direpute on the judiciary”, which would be something like “conduct unbecoming”. In other words, the only time judges or justices are impeached for voting wrong is if they took a bribe to do so.
January 21, 2010, 9:13 amAlan says:
That is indeed a good way to avoid substantively answering my arguments.
Description of what has not happened is not an argument about what should not happen.
January 21, 2010, 9:47 amMartinned says:
O, I’m sorry, I thought we were talking about the law. As in: the law as is, not the law as it should be. (Although I admit I occasionally wandered into the latter category.) Arguments about what the law is are generally settled by looking at precedent. You may not like it, but that’s how it has been going back to Roman Law. (See what I did there? I used precedent to defend the use of precedent.)
January 21, 2010, 10:29 amJRL says:
precedent is better than theory.
January 21, 2010, 11:51 amAlan says:
So historical senatorial practice creates what the Constitution really means by “good behaviour”? I didn’t realize that. I thought that the Constitution means what it says. How stupid of me.
Your argument can be charitably described as Orwellian. You’re not basing your argument on what the Constitution says, and yet you claim that I’m the one who’s arguing “the law as it should be.” I’m actually talking about what the law SAYS, and yet you say I’m not arguing what the law is. Tradition is not law. The Constitution is law. There’s a process for amending the constitution, and the impeachment process isn’t it, so the way that impeachments have or haven’t been used doesn’t shrink the meaning of “good behaviour” to exclude official judicial misconduct.
There’s a pretty meaningful difference between tradition and law, which you completely ignored. In fact, you completely ignored much of the substance of my argument and many of the responses to your less defensible points, which makes it rather puzzling that you’re so confident that you’re the one who’s arguing the law as it is, even as your argument makes only the quickest glances at the law itself.
You rely so heavily on precedent because you don’t have any answer to the numerous comments I made that you sidestepped. What Richard Posner said of Noam Chomsky seems equally true of you: your method of responding to an argument you can’t refute is simply to change the subject.
Your entire position is: (1) horrible consequences for judicial independence would follow from adopting my approach, and those consequences are more likely (how likely, and based on what evidence, you never say) than the negative consequences that follow from your approach; (2) official judicial misconduct, however severe, is consistent with “good behaviour” (a stunning, risible claim that you haven’t come back to defend, and that you can’t defend); (3) tradition equals law, so the fact that judges haven’t been impeached for making indefensible decisions means that the Constitution doesn’t allow impeachments for undeniably improper official judicial conduct, as if the impeachment process worked as an alternative to the amendment process.
I’m not arguing theory. I’m talking about what the Constitution says–which Martinned is studiously ignoring.
January 21, 2010, 12:36 pmMartinned says:
@Alan: We have two competing ideas about what counts as “good behaviour” in Article III. The traditional way to resolve such a problem is by looking at court precedent, since the courts tend to have the final say. In this case, however, the problem in non-justiciable, which means that Congress has the final say. So I looked at their precedents. That is an objective way to ascertain the meaning of the relevant constitutional provision, especially if you look at the earliest cases I quoted, like the cases of John Pickering and Samuel Chase, which were decided by many of the same people who were also involved in writing the constitution in the first place.
If you don’t like this approach, the only alternative is ipse dixit (“because I say so”) or legal-historical research. If you like the former, you’re welcome to it, but I hope you don’t mind if I don’t reciprocate. If you have suggestions as to the latter, feel free to share. I tend to start such research at the Findlaw annotations, like I did above when I tried to sort out whether requiring anonymous opinions is even possible, but about the “good behavior” clause it only says:
If you have any better sources, I’d love to hear about it.
In the mean time, how did this issue even come up again?
January 21, 2010, 1:08 pmAlan says:
I said that it would be stupid to take the position that no matter what, no judicial decision could ever be so indefensible that it could be grounds for impeachment. You responded:
I then pointed out that the Constitution says no such thing.
Your responses to my responses have mainly avoided the points I brought up. To take just one example of many: at absolutely no point have you defended your ludicrous assertion that abuse of judicial power can never ever constitute “behaviour” and therefore cannot be an impeachable offense.
Instead of responding to many of the points I made in response to your points, you now claim that my textual analysis is mere ipse dixit. I must be wrong because judges haven’t been impeached for abuses of judicial power. Just because my position is unpopular, or even unique, doesn’t mean it’s ipse dixit. Ipse dixit means the argument isn’t supported by analysis, which is not true of my argument, even if my argument doesn’t persuade you. You’re the only one who stated a conclusion (that official judicial conduct is not “behaviour”) without defending it on its own merits. A very odd thing to do when the conclusion is so jarring. (On your theory, it’s not inconsistent with “good behaviour” for a district-court judge to say, “because plaintiff is a Republican, the testimony of all his witnesses is incredible as a matter of law; I award summary judgment to the defendant.” That is not the kind of theory you can defend by simply saying something to the effect of, “that must be consistent with ‘good behaviour,’ because judges haven’t been successfully impeached for abusing their power.”)
For someone who’s diligently provided examples from the historical record, you sure are lazy about defending your arguments on their own terms, as interpretation of constitutional language. Well, that’s not quite right–you’re not being lazy; you simply don’t have a response that makes any use of what language the Constitution actually contains. Which again means that you’re the one guilty of ipse-dixit reasoning.
January 21, 2010, 1:27 pmMartinned says:
Yes, I remember, but how does that statement tie into the subject of this thread?
As for the rest of your comment: I suppose a textual argument is always somewhat of an ipse dixit. To avoid that, judges tend to cite dictionaries, often with name and page number. In this case, that isn’t very helpful.
Incidentally, my response is hardly ipse dixit. Instead, it offers teleological argument against your textualist one. Arguing from the apparent intentions of the authors of Article III, which at every turn seems to focus on defending the independence of judges and justices, I concluded that it followed that a legal disagreement between the Supreme Court (or any other court) and Congress would not be enough for impeachment, no matter how serious. When you cast doubt on my premise, which was a reasonable enough objection, I cited precedent, including the case of Samuel Chase, where at least a significant minority of Senators “doubted that the mere quality of his judging was grounds for removal”.
There is no way to resolve this disagreement more conclusively, at least not until Congress one day decides to do what you propose: impeach a justice for being wrong. And even then we still won’t know whether that was the original intention/public meaning. When it comes to non-justiciable areas of law, Congress can do whatever it likes, subject to the possibility of being punished by voters.
January 21, 2010, 1:56 pmAlan says:
It was an offhand remark in the course of my broader point about why it’s wrong to require the justices to issue their opinions anonymously. (I’m an arrogant b*****d, so I go out of my way to disclaim certain possible misconceptions of my views, even though no reasonable person would want to hear it. I didn’t want to create a mistaken impression about my opinion on this issue, even though the issue was only tangentially related to the topic of the post.)
Here’s the full paragraph that started my threadjacking (or whatever you call it—like Dilbert’s boss, I don’t know enough about technology to make my car go uphill, so I don’t know what word to use):
I generally agree with your point that “a legal disagreement between the Supreme Court (or any other court) and Congress would not be enough for impeachment, no matter how serious” and that issues of “mere quality” won’t suffice. That is, I don’t think that every time a judge gets it wrong the judge should be impeached. But I don’t go to the opposite extreme position that judicial conduct can NEVER be the basis of impeachment no matter how wrong, disingenuous, and/or usurpatious it is.
January 21, 2010, 2:58 pmAlan says:
Also I don’t agree that a textualist argument is inherently ipse dixit to some extent, but I won’t start another tangential battle over that.
January 21, 2010, 3:00 pmCecil says:
I have a problem with the supreme court over turning law that negates the fine balances democracy vs authoritarian rule. Such as Plutocracy
January 21, 2010, 7:35 pmM says:
Which is more insulting, that the authors imply that Justices pander to their legal audiences with political commentary, or that this is their only incentive for publishing their views? It will always be debated whether the individual ideologies Justices bring to the bench are a benefit or a hindrance when they examine cases affecting public policy. However, to think that Justices are “esteem-seeking” connoisseurs who are unable to regulate their contamination of judicial neutrality in favor of fame and glory, and that stripping their name from their writing is the ego-depreciating action necessary to fit the justices back in their robes falls contrary to two hundred years of progressive influence from the Supreme Court.
The Supreme Court is not empowered with the ability to inflict costs on those who ignore its decisions. Congress can withdraw funding to implement reform, and the Executive branch’s enforcement powers are even less subtle. At the Justices disposal is simply their writing. The opinions themselves are the only influence the Court bears on its society and fellow branches. Justices write fiery dissents filled with impassioned philosophy and political commentary because commentary is all they have. Their influence lies in their ability to persuade, to intellectually compel, every dissident and marked antagonist who questions the Court’s role in constitutional interpretation. Justices’ individual reputations, their established standings in the legal community, are simply a constructive embellishment to their arguments. Eliminating their ability to utilize this does not diminish their arguments, only their institutional influence.
January 29, 2010, 7:15 pmMFH says:
Respectfully, I see two problems with this particular reform:
1. The proposed reform of anonymous (or more accurately, unsigned) opinions is an example of the fallacy that a change in procedure will necessarily emit what one might call a substantive change. To wit: anonymous opinions = opinions that are “less frilly and more legal,” etc. Think of per curium opinions and ask yourself if these are necessarily better jurisprudential products than signed opinions. If the “quality” of the Court’s jurisprudence has declined (and reasonable minds will differ on this), then the problem is likely to be originating in places that the procedural reform cannot touch. We are then talking about making changes to the culture of the legal profession, from law school on up, a much more difficult but more imperative task than tweaking the modes and manners of the Supreme Court. On this front, ask yourself, for example, whether it is not odd that one of the barriers to entering the legal profession is admission to a law school. Who and how many individuals are allowed the privilege to make these admissions decisions, what criteria do they use, and how often do these criteria have any relation to sustaining the quality or integrity of the profession? These are the types of hard questions the intelligentsia of the profession should be exploring, not the somewhat naive thesis that forbidding a Justice to sign his or her name to a legal opinion will incentivize him or her to better jurisprudence.
2. Though it might have the authority to legislate this reform, it would not be healthy for Congress to do so. Let the Court voluntarily adopt this type of reform for itself. (Obviously, I would hope the Court would not adopt this particular reform.)
January 30, 2010, 2:53 pm