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.