Thanks again to Eugene for inviting us to guest blog about Judicial Duty and the Supreme Court’s Cult of Celebrity this week. We would also like to thank the commenters, especially those who read our posts (here here here here and here) and/or the draft article. In this final post, we respond to a few of the comments.
(1) Some commenters suggested that we are addressing a nonexistent or unidentified problem. Even if these commenters don’t think there is a problem, or one worth addressing, we think there is clearly a gap between the approach to judging advocated by Senators and nominees of both parties at confirmation hearings and the actual behavior of the Justices. One could therefore think of our proposals as tools by which Congress could try to narrow that gap if Congress were (or were someday to become) serious about promoting the ideals to which everyone seems to subscribe at confirmation hearings.
Even if one assumes that nominees are just pontificating to score political points when they purport to subscribe to judicial modesty, neutrality, and restraint, we think it is worth asking why they feel compelled to engage in such hypocrisy, and how they might be induced to adhere more closely to their professed ideals. Our Anglo-American legal system has a long tradition according to which judges should strive to be mere oracles of the law, not politicians in robes, let alone philosopher-kings or media celebrities. Perhaps they can never succeed, or at least not completely succeed. Still, we argue, the Justices could become at least a little bit more like the traditional model, if not through their own efforts then prodded by institutional incentives that Congress has the authority to establish. That argument cannot be refuted by cynical and unsubstantiated assertions about the inevitability of thoroughly politicized decisionmaking.
(2) We proposed that the number of discretionary cert petitions granted by the Supreme Court may not exceed the number of cases heard by the Court that were certified by the courts of appeals. Two commenters asked whether we would remove the constraint on granting cert petitions in any year in which the Court agreed to hear all the certified cases. The answer is yes, and we’ll correct this oversight in the final draft.
Another commenter suggested permitting state courts (as well as federal circuit courts) to certify cases to the Supreme Court. This is an interesting suggestion, and we’ll think more about it.
(3) Questions were raised about the new power we would give to the Court’s Librarian, once the Justices are deprived of their personal cadres of clerks and become dependent on the library staff for research. We’re inclined to leave the appointment and supervision of the Librarian in the hands of the Court, but we want to think more about the question.
(4) One commenter posed a number of questions about the possibility that our proposal to strip the Justices of their elbow clerks would cut the Justices off from the fresh thinking and familiarity with contemporary life that these young people can provide. We doubt that this would be a serious problem. The notion that Supreme Court clerks—chosen from an elite segment of the population and cocooned with their Justices in a world of extraordinary privilege—are putting the Court in touch with contemporary American life is pretty far-fetched. In any event, we think there are ample opportunities for advocates and amici to bring new thinking and information to the Court through their briefs.
(5) The same commenter suggested that there is an inconsistency between the claim that clerks exert excessive influence on decisions in cases that receive plenary review (a claim that we neither endorse nor deny) and our claim that some clerks “cravenly or strategically” flatter their Justices. There is no inconsistency. To the extent that some clerks engage in strategic flattery, it may promote excessive influence. To the extent that some are behaving cravenly, that is irrelevant to whether other clerks exert too much influence.
(6) Some comments noted that our proposals do not address the “cert pool problem,” that is, that the Justices are excessively dependent upon the clerks in deciding which of the thousands of cert petitions to grant. Perhaps the Justices cannot be expected to give adequate personal attention to all the petitions filed each term. Under our proposal, a cert pool could still be operated under the auspices of the Librarian, and it might have most of the same advantages and disadvantages of the current cert pool. But it would probably not be any worse, and it might evolve into something better if clerks were chosen for their professional expertise and experience as legal researchers rather than for their promise as craftsmen of judicial opinions for particular Justices.
(7) Some commenters noted that our proposal for anonymous opinions would not prevent outsiders from guessing who wrote what, and that Justices could make sure they guessed right. We addressed this in the post and in the draft article, but perhaps it’s worth adding the following point.
If majority opinions were anonymous, those who joined the opinion would have an incentive to demand that the author avoid the kind of self-identifying extravagances that we often see now. Under current practice, there’s little incentive for a Justice to object to self-indulgent excesses before joining an opinion: it’s obvious that most everyone will attribute such stuff to the named author, especially when it’s particularly grandiose or sophomoric. But under our proposal, more moderate colleagues would have new incentives to say, “Please take this out of the draft because it doesn’t reflect the views of the Court.” And the author would have less incentive to resist taking it out. Furthermore, once this kind of material started getting left out of majority opinions, there would be less incentive for putting it into concurrences and dissents, especially since those, too, would be at least nominally anonymous.
As to congressional enforcement of a norm of anonymity, we think that a few pointed remarks at congressional budget hearings would motivate most members of the Court to collectively discipline their more rambunctious colleagues.
(8) Some commenters claimed that congressional imposition of a rule of anonymous opinions would violate the First Amendment or the separation of powers. We think not. We are aware, of course that the Court sometimes strikes down laws for no other reason than they don’t like them. (For discussion of a few examples, see here). And we are aware that some academics have gone so far as to argue that a constitutional amendment adopted pursuant to Article V might be unconstitutional. So maybe it’s impossible to say with real certainty that any law is unquestionably constitutional.
It seems to be well-established, however, that Congress can order the Court to decide certain cases that are within its jurisdiction, and that it may withdraw appellate jurisdiction from selected categories of cases. Congress has ordered the Justices to ride all over the country by horse to hear routine cases (an imposition that the Justices themselves upheld), and it once even cancelled a term of the Court. Congress has manipulated the size of the Court, and has told the courts what rules of procedure and evidence they must use. Against this kind of background, we don’t think there is a plausible legal argument that our proposed rule for anonymous opinions would be unconstitutional. But if there is, it would require a lot more than an offhand allusion to the First Amendment or the separation of powers.
(9) Finally, we would like to thank David Bernstein for pointing out what could be the most salutary effect of adopting our proposal to strip the Justices of their elbow clerks:
But if we adopt your proposal, what becomes of the power and prestige of the former clerks who help choose the current clerks? How will Above the Law readers and others determine the hierarchy of recent law school graduates? How will law schools know which recent law school graduates are worthy of teaching constitutional law? You are talking about chaos, gentleman, utter chaos! Anarchy!
SuperSkeptic says:
I appreciate the attempt at clarification of the problem. I understand why you think certain decisions are “lawless” and do not abide by the bipartisan judicial ideal. The remedies – to the extent that there can be one – proposed are a laudable attempt at reigning in the willfulness of lifetime appointed judges, but why should we expect them to truly curtail the justices willfulness, assuming that they act in such an egregious manner currently? The same people (Congress) who would implement these modest reforms are the very same people who ratify by silence (or lack of impeachment for willful non-”good behavior) the same judicial persons current actions. A bipartisan impeachment may be the only way to curtail such a “gap” in reality, because as each partisan side apologizes for the judicial reasoning and resulting policy that benefits them, the willfulness cycle inevitably continues.
January 23, 2010, 3:39 pmChris Travers says:
I don’t think this does justice to a major objection to anonymous opinions.
Given a text of disputed authorship, there are people who can methodically go through the text and determine a number of things, including:
1) How many people actually wrote parts of the document?
2) Was this document written by the same individual as another document of known origin?
3) Approximately when was the document written?
These are neither straightforward observations not are they merely educated guesses. Even if you are right and the main hallmarks of who wrote what disappear (for example, Scalia’s occasional bellicose tirades), it doesn’t prevent individuals knowledgeable regarding textual studies from being able to determine who wrote it.
Such individuals could even pick out a portion of an opinion written by a clerk or by a different justices, if such were to be edited in.
For example, see Gershom Scholem’s important works concerning the authorship of the Zohar. He largely proved that the work was a 13th century pseudopigraphic text (i.e. a forgery of legitimate religious significance).
January 23, 2010, 3:40 pmmethodact says:
How would anonymity not lead to a star chamber? The justices that were installed on the bench solely for their fealty to corporatism are already well known. Doesn’t the proposal of anonymity tend to further exacerbate the nuisance?
January 23, 2010, 4:24 pmfrankcross says:
I still don’t see how you can protect anonymity. If the cult of celebrity is encouraged by naming authors, and if justices like the cult of celebrity,why wouldn’t they disclose authorship. I think you can constitutionally restrict the formal reporting of authorship, but do you think you can constitutionally restrict outside disclosures of authorship?
There will certainly be great speculation about justice votes after an opinion is issued. Text analysis may identify them. But even without that, surely a justice could disclose authorship, especially when the speculation proves to be wrong. If the WP says Thomas authored this opinion, and he did not, can you preclude him from correcting the record?
January 23, 2010, 4:33 pmAJK says:
I’m not sure you do full justice to the First Amendment concerns. I don’t think there’s any question that Congress could require that opinions be published without attribution of authorship. But I’m not at all certain that Congress could forbid informal disclosure by the justices — or by their spouses, children, friends, secretaries, housekeepers, etc.
I think that leads to a larger problem with your suggestions. You’re proposing changing the rules to get the justices to behave in a way they don’t want to. But these are nine of the finest legal minds in the country, and they’re going to find loopholes if any exist. For instance, after you centralize all the clerks under the librarian, what’s to stop the justices from having unpaid interns do all the work of interns? I’d have to imagine that the opportunity to work with a Supreme Court justice directly would still attract a high caliber of applicant, even without salary (and that the internship be worth a decent bonus afterwards).
January 23, 2010, 4:46 pmNelson Lund says:
Some commenters continue to repeat the obvious point that willful Justices could easily evade some of the proposed rules. I think we’ve already answered this objection adequately, but let me make it a little more vivid. If Congress were put the Justices back in their quarters in the basement of the Capitol, with all the amenities they were originally given, the evasions would stop, after which they could be allowed to return to their marble palace across the street.
January 23, 2010, 4:58 pmliamascorcaigh says:
Our Anglo-American legal system has a long tradition according to which judges should strive to be mere oracles of the law, not politicians in robes, let alone philosopher-kings or media celebrities
Talk of the Anglo-American tradition is like the Judeo-Christian canard that has taken such hold in recent times; the phrase asserts far more than is embodied by the reality which it invokes. The American system of law grew out of the English practices but “grew out” is much more than a metaphor. The democratic instinct at the heart of the American experiment which Andrew Jackson made explicit worked to transform American practice and jurisprudence in ways which render appeals to some linear English descent not at all as meaningful as the appellants seem to imagine they are.
Americans famously elect everyone from dogcatcher to Head of State. And judges. The English do none of these three things. The equivalent of dogcatchers are local government employees, judges are appointed by an incestuous quasi-legal, quasi-political process far from transparent even now. And their Head of State inherits the position through a rule of primogeniture and a concept of “the blood royal” which seems grotesque to most sentient life forms these days. By law the throne cannot be occupied by a Roman Catholic. Separation of Church and State how-are-ye!
The English, are also, by the way, not citizens of the state but “subjects of the Crown”, a distinction which is not quite without meaning to the way in which the power relationships within a state are conceptualized. Ask Tom Jefferson.
The Law Lords – UK equivalents of the Supremes – function as actual lords with ex officio seats in Parliament. Bye, bye the American Pie concept of Separation of Powers!
The US has a Constitution – a real document which you can hold in your hand and peruse and parse and analyze till the cows meander to the Moon and back. The English have Common Law and Uncle Tom Cobley, a hodge-podge of ancient edicts and contemporary EU eukases and everything else in between. The English from time to time call this their “Constitution” but it bears the same resemblance to the real thing as an elephant to a racehorse.
George Bernard Shaw – an Irishman without a dog in the fight – famously said that the English and Americans are separated by a common language. That gulf is made up of more than linguistics.
January 23, 2010, 5:51 pmohiolawdog says:
I’m wondering if you’ve noticed whether reactions to the reforms that you propose differ based on the political leaning of the reader. I.e., do conservatives generally like the reforms and liberals generally dislike the reforms, or vice versa? I’ve been too busy to keep up with the comments here, but if anyone has a sense of this, I’d be very interested to know.
January 23, 2010, 6:00 pmlgm says:
The problem is with the word mere. The Supreme Court is for deciding the hardest cases. That’s not easy. What rights of the individual do corporations also enjoy? Do emails that cross state lines constitute interstate commerce? These are living philosophical questions that cannot be solved by looking up a part number in a catalog. Don’t we want the sharpest legal minds doing it? Don’t we want to think deeply about these issues? Don’t we want them to document their thought processes? Taking away clerks or making opinions won’t make the issue any easier. And it won’t make the decisions any better.
Lawyers seem on the one hand to think one has to be smart to be good at law, and at the same time to think that application of general principles to specific cases is so routine that anyone can do it.
I think your complaints about “philosopher king” really represents dissatisfaction with judicial decisions. It’s like Sarah Palin types complaining about “academic elites” because whose who take the time to learn history and science don’t accept the BS tea partiers believe.
January 23, 2010, 7:02 pmMartinned says:
Just to clarify: Starting with the current term, the UK has its very own Supreme Court. In any event, the Law Lords haven’t taken up their seat in parliament for decades. If they did, they would get in trouble with the ECtHR under the Procola precedent, amongst others.
The US constitution is a single document, while the UK constitution consist of a series of documents. Both have an enormous stack of constitutional custom and case law that surrounds them. Why does the one/many distinction matter?
England has an Established Church, just like many US states did for many decades after the founding.
In general, though, your point is well taken. English practice has changed a great deal since the late 1700s, while US law has been petrified in a constitution that is treated as holy scripture, mandating, for example, civil juries that are wholly impractical in many circumstances.
January 23, 2010, 7:25 pmJM Hanes says:
I’m taking the liberty of cross posting my comment on your penultimate column, which I submitted without realizing that you were simultaneously responding to readers on the main page.
In the meantime, I’m not sure how changing an initial proposition advances an unaltered argument, and I believe the new formulation makes the reforms you propose even less relevant when the problem being addressed is a thoroughly politicized confirmation process. The nature of the Senatorial inquisition is the corrupting force in that regard, and the Senate is where the problem needs to be fixed. Nominees, indeed, everyone involved in, and observing, that kabuki theatre, know precisely what the politically correct answers and non-answers clearly required for confirmation must be.
From the previous thread:
As I understand your thesis, Supreme Court Justices are a collection of feckless, lazy, out-of-touch, status seekers, who arrogantly insist on hiring staff to assist them as they see fit.
I gather this disastrous state of affairs is to be remedied by:
** Consigning the Justices to the anonymity their hubris so richly deserves,
** Dividing their time in arbitrarily equal parts between cases they think worth hearing and cases they don’t,
** Eliminating the diffuse, patently pernicious influence of law clerks, by subordinating them to a single, presumably uncelebrated, Court Librarian empowered to set the Court’s agenda,
** Reducing vacation time and requiring the Justices to meddle in lower court operations and cases of indeterminate length, where they will hopefully suffer the humiliation of reversals by their colleagues,
** All of which will probably, and properly, humble the Justices’ ambitions, force them to earn their keep, open their eyes, if not their hearts, and imbue them with respect for everyday judicial travails. This will ultimately result in more coherent, consistent, useful opinions, and will obviously have a salutary effect on the systematic efficiency of the Judicial Branch.
Perhaps in your extended article you make a more substantive case for the ostensible problem, the ostensible causes and the ostensible effects of the reforms you propose here. Your assumption that clerks are picking cases and writing opinions for idle Justices doesn’t seem to accord with the kind of judicial grandstanding you assert and deplore. Moving responsibility for such determinations to the Librarian, while expanding the managerial functions of the Justices, strikes me as a rather bizarre role reversal!
As a practical matter, rewriting job descriptions in DC, as you suggest, looks far more likely to engender chaos in the lower courts and beyond. I would challenge you to plug your recommendations into an organizational chart, and wish you luck negotiating the crisscrossing lines of authorities and jurisdictions which your reconceived operations represent.
Ironically, out here in the uninsulated world, the fact that you choose to sign your names to your opinions has no bearing on the validity of your critique, and the fact that I choose to put my name to this opinion actually signals my sense of responsibility for its contents.
January 23, 2010, 8:42 pmJM Hanes says:
As an addendum on the downside of anonymity, anyone who has participated in collective efforts accorded joint credit can testify that 90% of the work will be done by an industrious 10%. You can put the Justices in the basement, but how do you propose to ensure they pull their weight?
January 23, 2010, 9:11 pmfrankcross says:
I don’t think you have answered the objection adequately. I don’t think that there is any prospect Congress would put the Court in the basement. But I think that is pretty irrelevant, as justices could anonymously leak to the press the information on authorship without attribution and there would be no basis to so punish them. Assuming that they could be appropriately punished for exercise of their free speech attributing opinions to themselves, which I don’t believe you have adequately addressed. Or they could have clerks leak. Or someone else.
January 23, 2010, 11:04 pmCurious passerby says:
If Congress were put the Justices back in their quarters in the basement of the Capitol, with all the amenities they were originally given, the evasions would stop,
I haven’t followed all the posts but this whole idea strikes me as the fantasy of a teenager who would like to switch places with his parents and show them a thing or two. Are the authors bitter at the realization that they’ll never be on the SC?
January 23, 2010, 11:10 pmliamascorcaigh says:
Just to clarify: Starting with the current term, the UK has its very own Supreme Court. In any event, the Law Lords haven’t taken up their seat in parliament for decades. If they did, they would get in trouble with the ECtHR under the Procola precedent, amongst others.
Just to clarify: as I said, the Law Lords are ex officio members of Parliament. Separation of Powers how-are-ye.
The US constitution is a single document, while the UK constitution consist of a series of documents. Both have an enormous stack of constitutional custom and case law that surrounds them. Why does the one/many distinction matter?
Because the US Constitution is a Foundation Document to which all other laws, decrees, acts, practices, customs etc. must conform, implicitly or explicitly, positively or negatively. It can only be amended by a vote of citizens within each individual state with two thirds of the states concurring in the change. It endows the citizen with enumerated rights which cannot be alienated by federal or state legislation. It places significant limits on the power of the Executive.
The corpus of English Law cannot perform such a function because it privileges no Basic Law over any other. The country is ruled by the King/Queen in Parliament. Hence parliamentary legislation is supreme – or was until the EU began siphoning off sovereignty – and therefore any law whatever can be nullified by the passage of a subsequent law. This distinction is precisely illustrated by the Irish government being forced through gritted teeth by Bunreacht na h-Éireann – the Irish Constitution – to hold a referendum on the Lisbon Treaty while British subjects were left merely with politicians’ promises to do so. The promises were of course broken.
England has an Established Church, just like many US states did for many decades after the founding.
Your point is? A Roman Catholic still cannot sit on the throne. Neither by law can a Catholic or Jew become Prime Minister.
In general, though, your point is well taken. English practice has changed a great deal since the late 1700s, while US law has been petrified in a constitution that is treated as holy scripture, mandating, for example, civil juries that are wholly impractical in many circumstances.
US law petrified!!! As in turned to stone? My dear fellow. Step up, Earl Warren, Warren Burger, Blackmun, Brennan, Ginsburg, O’Connor and all that merry crew. In the hands of such luminaries US law is about as petrified as quicksilver.
And juries. The English have set aside the right to silence and the unanimous verdict. As regards deploring the mandating of juries in and of themselves as “wholly impractical”, that comes ill from one championing English jurisprudence as jury trials were one of the essential contributions the English made to securing the freedom of the individual from the tyranny of official power.
January 24, 2010, 9:25 amNelson Lund says:
frankcross wrote:
I’ll try one last time.
(1) Of course there is no prospect that Congress would send the Justices back to the Capital basement. As we explained in our post, far less drastic measures would suffice.
(2) Congress need not conduct investigations, or prove that somebody leaked something, or violate anyone’s First Amendment rights. All Congress would have to do is withhold (or threaten to withhold) from the Justices perquisites that Congress is under no obligation to supply. The Justices would then voluntarily comply with the spirit of the law. And if an individual member of the Court refused to go along, the others could make sure that he wrote no majority opinions. If some maverick wanted to content himself with a career spent writing separate opinions for which he could take public credit, fine.
January 24, 2010, 10:48 amfrankcross says:
I don’t understand how Congress would withhold perquisites for disclosure, if Congress could not prove that somebody leaked something. Suppose the WP says it knows that Thomas authored a certain opinion. How would Congress know whom to punish? How could they punish the justices, by withholding perquisites, when they have no information that the justices themselves have done anything?
Maybe this is all silly, because this seems more theoretical than likely to be adopted. But I don’t see how it could be effected.
January 24, 2010, 12:12 pmreadery says:
Why not set rules limiting the number of opinions?
1. Provide that the Court can’t overturn a state court or declare a state statute unconstitutional without an opinion of the court subscribed to by a majority of the Justices. If the majority of the Court can’t agree on a reason, it can’t overturn state actions — it can only act as the supervisor of the Federal Courts — and state court decisions stand as if cert had never been granted.
2. Limit the number of concurring and dissenting opinions that can be filed in a case to one each.
This would force justices to either reach agreement or not get a say in the issue and prevent the proliferation of one-opinion-per-Justice cases.
January 24, 2010, 1:09 pmreadery says:
Also, how about the following procedure for capital cases:
In every capital case, the prisoner gets an appeal of right and a right to file for an original writ of habeas corpus in the Supreme Court. If the Supreme finds potential merit, it should be empowered to authorize filing a case in district court for appropriate further proceedings. Otherwise, that’s it, if the Supreme Court finds no possible merit in their petition they can’t go anywhere else.
The Supreme Court is going to hear every capital prisoner’s habeas petition anyway. Why not give them the gatekeeper function?
January 24, 2010, 1:21 pmTweets that mention The Volokh Conspiracy » Blog Archive » VC Readers on the Cult of Celebrity -- Topsy.com says:
[...] This post was mentioned on Twitter by Deanne Daniew, Simon, Carina Tuppier, Movie_Matt, Ellen Matt and others. Ellen Matt said: The Volokh Conspiracy » Blog Archive » VC Readers on the Cult of …: Thanks again to Eugene for inviting us to gu… http://bit.ly/4RNS0h [...]
January 24, 2010, 9:08 pmFantasiaWHT says:
Hogwash. If the problem, as you see it, is Justices wanting to take personal credit and glory for their writings, the Justices will all extend the courtesy to one another of allowing those personal quirks and expressions to be placed conspicuously in opinions, because they all will want to do the same thing.
January 25, 2010, 10:04 amTed says:
As a famous SC Justice once said, sort of:
“We are not final because we are infallible, but we believe we are infallible only because we are arrogant.”
I don’t know what it was like back in the day, but history books paint a picture of a humble time, with Justices more concerned with getting the right answer than with pushing their own ideology or publishing books (or dissents). Stevens’s blistering dissent in Citizens United was unbecoming of such a learned man. The fact that it was necessary says worse about the majority.
January 25, 2010, 5:54 pmPrison Rodeo says:
I humbly offer the following:
“Legal Duty and the Law School’s Cult of Celebrity”
Abstract: Judging from recent hiring seasons, there is now a consensus that law professor should be humble servants of the law, highly respectful toward legal education 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 professorial duty, this article proposes four professional and pedagogical reforms that could help professors stick a little closer to the promises they are expected to make, and do make, at their interviews. First, law schools should require that all law review articles, including critiques and book reviews, be published anonymously. This should lead to fewer self-indulgent treatises, more coherent and judicious arguments, and more reason for future professors and students to treat the resulting analyses respectfully. Second, law schools should require professors to take part in at least one actual case in a real, live court for every long-winded footnote-festival they author. This would reduce the temptation to assemble a vitae consisting largely of interesting or high-profile theories, and encourage professors to grapple with more of the important but unglamorous issues vexing the lower courts. Third, the ABA should forbid law students from editing law reviews, instead implementing a system of single submission and blind peer review. Truly humble and old-fashioned law profs should build upon existing work, subject their writing to the scrutiny of their colleagues (rather than that of their handpicked votaries), and let the chits fall where they may. Fourth, law schools should require faculty to serve part of their time teaching undergraduates, as they did for the first eight centuries of the university’s existence. Restoring “undergraduate education” would give law professors some on-going experience with playing the role of a modest educator whose pedagogical approaches are subject to external scrutiny and who is often required to prepare impressionable twenty-two-year-olds for the soul-devouring wasteland of law school. If serving as a law professor were to become a full-time, non-delegable job with fewer opportunities for personal aggrandizement, law profs would behave more like educators than legal celebrities, law deans would have more incentive to hire genuinely able people, and fewer law professors would insist on staying in the saddle past the time when they can even mount the horse.
January 25, 2010, 10:45 pmSCOTUSblog » Academic round-up says:
[...] Craig S. Lerner (George Mason University School of Law) and Nelson Lund (George Mason University School of Law) have posted “Judicial Duty and the Supreme Court’s Cult of Celebrity” on SSRN, see here. The piece is forthcoming in the George Washington Law Review. In the tradition of the recent spate of articles on reforming the Supreme Court, Professors Lerner and Lund propose four changes: (1) Congress should mandate that all Supreme Court opinions, including concurrences and dissents, be issued anonymously; (2) Congress should require the Court to hear one certified case from a circuit court for every case that originates from the Court’s purely discretionary federal question docket; (3) Congress should forbid the law clerks from drafting opinions and place all law clerks under the direction of the Supreme Court’s librarian; and (4) near and dear to my own heart, Congress should reinstitute the practice of circuit riding. The reforms proposed by Professors Lerner and Lund are designed to make the job of Supreme Court Justice more difficult and to reduce the “celebrity” status that the Justices currently enjoy. Though there are aspects of the paper with which I disagree, it is very provocative and well-done. As an added bonus, the authors have blogged recently about the article on Volokh Conspiracy, see here, here, here, here, here and here. [...]
January 29, 2010, 12:32 pm