Lund and Lerner on Humility and the Supreme Court:

My GMU colleagues Nelson Lund and Craig Lerner have a provocative piece over at National Review online suggesting how we can move the Supreme Court away from the current nine cults of personality that prevail to a more truly conservative Court:

Take away their law clerks....

We propose to leave the justices free to decide how many cases to hear, and which ones. But Congress should require them to hear at least one diversity case for every federal question case they accept for review....

Bring back circuit riding....

Eliminate signed opinions....

I'd give the Justices one clerk to handle mundanities like correspondence, administrative tasks, and proofreading and citechecking. I think this would take care of the problem of multiple, idiosyncratic opinions without resorting to doing away with signed opinions. Relying on mature lawyers (the Justices) rather than green clerks to decide which cases to grant cert. would likely also move the Court in the direction of accepting fewer nude dancing and more commercial cases. But I think riding circuit would be a lot more productive use of the Justices' summers than whatever they do currently.

UPDATE: I cut this back because between my post and Todd's below, we reprinted too much of the article.

Steveo987 (mail):
Why should the US Supreme Court decide more common law cases when they're not the ultimate arbiter in that area? That's a job for state supreme courts.
3.6.2006 2:00pm
The piece is here.

This paragraph is particularly provocative:

Perhaps most important, constitutional law is becoming an aggregation of nine idiosyncratic theories and nine bodies of personal precedent. To a degree that would have shocked the Founders, today's justices care more about fidelity to their own individual past pronouncements than about stability and predictability in the decisions of the Court itself.

Every time I read cranky-sounding op-eds calling for cancelling the Justices' vacations and reducing their law clerk staff, I usually detect a hint of jealousy. Pieces calling for more "humility" from the Supreme Court are often written by lawprofs who are particularly lacking in humility themselves.

This, however, seems like it may be onto something if one looks past the rhetorical flourishes. I wonder how much truth there is to the idea that the Supreme Court has "nine bodies of personal precedent." If that's the case then the court starts to sound a bit more legislative than judicial.
3.6.2006 2:08pm
But Congress should require them to hear at least one diversity case for every federal question case they accept for review....

Lund and Lerner seem to seriously believe that Congress has the power to dictate the Supreme Court's docket. Can anyone provide further background on this argument?
3.6.2006 2:24pm
Steveo987 (mail):
Pardon my earlier (an no doubt, future) grammar issues, but I'd like to elaborate.... What's wrong with allowing the individual states to decide their own common law? Further, with the stubborn independence of many state supreme court justices, wouldn't many of them delight in telling (in subsequent cases, of course) the Big Boys how they got the law wrong? Having the Supreme Court decide state law issues seems to be a tremendous waste of resources.
3.6.2006 2:27pm
I never understand this idea that the clerks decide which cases to take. Unless the cert pool clerks are not acting in good faith, they reproduce the arguments made by the parties. Then the justices read those memos and make their decisions. No doubt clerks can have an impact on the margins. But it's just not the case that the clerks are "deciding" any substantial portion of court's docket. Or am I missing something?
3.6.2006 2:36pm
Been There, Done That:
about the only people who cannot lecture federal judges about humility are... law professors.
3.6.2006 2:39pm
This half-hearted proposal doesn't go nearly far enough: We need to restrict the SCOTUS to a single member, dictate the caseload, and impeach if the majority of Congress and the President disagree with the result. Only then will we have a true democracy.
3.6.2006 2:46pm

Off topic--I was wondering if you (or another Conspirator) could dedicate a post to President Bush's recent proposal to renew the line-item veto. How could such a proposal pass constitutional muster after Clinton v New York. Also, if in attempting to make the law constitutional the legislature can essentially veto the president's line-item veto, doesn't this violate Chadha? Thanks.
3.6.2006 2:47pm
te (mail):
Why does such an inane proposal even merit comment?

The law and motion judge in my local county two full time law clerks.

I think it is safe to say that issues reaching he Supreme Court have a bit more importance than routine law and motion matters.
3.6.2006 2:56pm
Old Dominion (mail):
Bring back circuit riding....

on actual horses!
3.6.2006 3:09pm
JunkYardLawDog (mail):
These suggestions must be tongue in cheek. Congress could set the budget in total for the Judicial branch, but I don't see how Congress could dictate how they spend the money and whom they hire and to whome they delegate tasks.

Now if only Congress AND some on the SCOTUS realized the same thing is true of the Executive branch and how it carries out its functions.

Maybe the best thing about this proposal would be how quickly the Supreme Court would invalidate it on separation of powers principals and then they should hear right after that some of these Anti-Bush, Anti-War on Terror, Anti-Terrorist Surveillance Program cases; followed by hearing some cases on the legality of setting up independent executive agencies that don't report to the President. How would the Supreme Court take it if Congress set up some independent court officers that had exclusive authority to hear abortion cases with no right of appeal to the Supreme Court. While congress at least has some pegs in the constitution to do just that, they have NO PEGS to do that to the Executive branch.

Says the "Dog"
3.6.2006 3:43pm
Anderson (mail) (www):
Let me leap at the opportunity to agree with "the 'Dog.'" Indeed, the article in question has unified us all by its evident stupidity (if seriously intended).

Why President Bush doesn't have the same effect on the country is a difficult question, though I note that the latest polls suggest that Bush is indeed beginning to unite us.
3.6.2006 3:50pm
Sydney Carton (www):

"but I don't see how Congress could dictate how they spend the money and whom they hire and to whome they delegate tasks."

They do this to the executive branch all the time. Why can't they do it for the judicial branch? Heck, the appellate courts are creatures of Congress, so the ability to tell the appellate courts who they can hire and how they delegate tasks seems implicit in Congressional power.
3.6.2006 3:56pm
Matt22191 (mail):
We may have just witnessed the birth of a new definition of chutzpah.
3.6.2006 4:38pm
This article wasn't about the appellate courts, though. It was about the Supreme Court.

I doubt Congress has the constitutional power to tell the President that for every act of foreign aggression he commits, he must balance his karma by planting a tree.
3.6.2006 4:38pm
Matt22191 (mail):

You said, "Lund and Lerner seem to seriously believe that Congress has the power to dictate the Supreme Court's docket. Can anyone provide further background on this argument?"

I give you Article III, section 2 of the United States Constitution:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
3.6.2006 4:48pm
Matt L. (mail):
Two points on the cert pool:

1. The idea of "make justices work much harder so they have no time to write long opinions" may have some simplistic appeal, but I doubt it works with the extreme example of making them review cert petitions themselves. Clerks spend something like 30% of their time on cert pool -- and that's at one clerk per petition. If each Justice had to review each petition, they would have no time for anything else -- or they would give each petition something like 1/8 of the attention it gets now.

2. If justices want commercial cases instead of first amendment cases, they can hire different clerks. There are plenty of young lawyers who are interested in commercial law and would be happy to clerk for the justices. Justices prefer to hire clerks with public-law inclinations, which suggests that the justices themselves have similar inclinations. Taking away the clerks wouldn't affect that.

And one point on riding circuit: the circuit courts take the summers off too. They use the time to draft opinions, not (just) to take vacations, but they don't sit during the summer. So riding circuit during the summer will be a waste of time.
3.6.2006 4:49pm
Don't you think it's a stretch, Matt, to claim that Congress' power to regulate the Supreme Court's appellate jurisdiction means that it can regulate how many law clerks the Justices have, etc.? I can't imagine how one would write a statute that divests the Supreme Court of jurisdiction in the event it attempts to issue a signed opinion.
3.6.2006 5:01pm
Steve, that's not what Matt was arguing. As I understand it, the question he was answering was whether Congress could regulate the Supreme Court's docket, i.e. whether the following proposal is doable:

Force them to decide common-law cases. The Supreme Court, which today has virtually total discretion to choose which cases to hear, once had little or no choice at all. Using the freedom Congress has granted them, the justices focus on the most interesting constitutional and statutory issues arising from "federal question" jurisdiction. Missing are the kind of common-law contract and tort cases that come under "diversity" jurisdiction — that is, disputes involving issues of state law between parties from different states. There are plenty of diversity cases in the lower federal courts, but the Supreme Court almost never agrees to hear one.

We propose to leave the justices free to decide how many cases to hear, and which ones. But Congress should require them to hear at least one diversity case for every federal question case they accept for review. Still free to take all the cases they like on such stimulating topics as nude dancing, flag burning, and abortion, they should have energy left to decide an equal number of cases dealing with such matters as the common law of negligence and breach of contract.

I didn't read his comment to be answering the question of whether Congress could take away the law clerks.
3.6.2006 5:38pm
Well, I'm familiar with the principle that Congress can regulate the Court's appellate jurisdiction, of course, but intuitively it seems like a logical leap to go from there to flat-out regulation of the docket. "The Court only has jurisdiction over a federal question case if the prior case it accepted was a diversity case..." I can't even imagine how the statute would be written to try and make it a matter of jurisdiction.

Lund and Lerner, however, seem to think not only that it's okay for Congress to control the docket, but that it actually used to happen this way, back in the good old days before the Court got out of control. I was curious if anyone had more information on the historical issue.
3.6.2006 5:55pm
Eliminate the publication of dissenting opinions.
3.6.2006 5:57pm
Matt22191 (mail):
I was responding to your question about "dictat[ing] the Supreme Court's docket," not the question of how many clerks the justices can hire. Though since Congress does have constitutional control of the purse strings, I really don't see a problem with that, either.

I can find no reference to clerks in Article III, and absent some constitutional guarantee of clerks I don't see why Congress should be less able to dictate spending to the Judicial Branch than the Executive. It seems to me that, for constitutional purposes, clerks are just glorified -- if unusually bright and ambitious -- federal employees. Heck, they're not even "officers of the United States." If Congress can change the number of justices (it has, though not recently), surely it can do so with respect to lesser employees.
3.6.2006 6:08pm
Matt22191 (mail):
"I can't even imagine how the statute would be written to try and make it a matter of jurisdiction."

"A matter of jurisdiction"? In this context, "jurisdiction" just means, "those (appellate) cases Congress decides to let the Court hear." Any rule established by Congress that limits the cases the Court may hear is by definition "a matter of jurisdiction." Imagine a little harder.
3.6.2006 6:20pm
Matt22191 (mail):
By the way, let me add that I don't think Lerner and Lund were entirely serious about these recommendations.
3.6.2006 6:21pm
te (mail):

By the way, let me add that I don't think Lerner and Lund were entirely serious about these recommendations.

Okay, so they are not idiot - they're just not funny.
3.6.2006 6:27pm
Anyone have any thoughts about the "nine bodies of personal precedent" angle...? that many of us agree that the actual proposals are mostly facetious, unworkable, and/or unconstitutional.
3.6.2006 6:48pm

Anyone have any thoughts about the "nine bodies of personal precedent" angle...?

Well, it is a little ironic that this post is located above a post regarding a possible trend towards greater unanimity. The truth is probably neither.

I can't think of a Court that shared a single, coherent judicial theory of interpretation. A better phrased question might be: How long can one continue to dissent/concur? Or more generally, how much force does stare decisis carry? This is a question all the Justices struggle with, but I don't see it as a mark of personal failure.
3.6.2006 7:13pm
JJV (mail):
Does anyone here understand why the Court, according to these authors, should take more common law cases? There is no federal common law. Aside from ERISA and other statutes that require borrowing, each state's judiciary is supreme as to the common law in that state. The Supreme Court can not decide what the common law is nationally. When they have dealt with common law questions, as Roe, Lawerence and a host of other cases demonstrate, they get it wrong. One of the chief glories of the common law is that the prima donnas of the Supreme Court don't get to decide what it is. Any suggestion that they should do so is increasing their hubris and power not decreasing it.

Worse, the Judges with a big common law background, noticeably Justice Souter, are not particularly impressive nor has their experience with the common law improved their constitutional jurisprudence.
3.6.2006 8:33pm
snowball (mail):
These proposals must be tongue in cheek, because they wouldn't lead to clarity in the law or keep the justices from deciding hot button constitutional cases. In fact, they would probably make the law less clear and allow the justices to take up more controversial cases.

Law clerks. First of all, law clerks act as a brake on the Court's cert-granting power in controversial cases. The literature on the cert pool strongly suggests that law clerks are more likely to deny cert unless a petition is a dead sure grant. When the justices had fewer law clerks 40 or 50 years ago, they were comfortable taking cases simply because they were interesting or "important" or because the result below seemed unjust. That's rare now.

Also, fewer law clerks may mean shorter opinions, but why would that necessarily be a good thing? I've read lots of Supreme Court opinions from 80 years ago. They can be fun reads, but some of them are cryptic because they're so short (think of the typical Holmes opinion).

Common law cases. Do they mean to overturn Erie RR v. Tompkins and revive Swift v. Tyson? If so, what would they do about the confusion in the law about which diversity cases are governed by general federal common law and which are not? Almost a century of experience with Swift didn't produce a fool proof formula for that little conundrum. What about the risk of increased forum shopping? So much for federalism!

Circuit riding. Circuit riding would force the circuit justice to recuse himself when the case on which he had sat below makes its way to the Court. Decisions without a full bench are disfavored by the Court, so cert petitions in those cases are also disfavored. The practice of circuit riding would deny the parties the same chance of further review as they would have received if the panel did not include the circuit justice. Oh, and maybe back in the day when travel was very dangerous and time consuming circuit riding would slow down the justices. The authors may not have noticed this development, but we now have jet airplanes that whip us across the sky in no time. And there's this other thing called the internet that allows people to stay in touch with their offices no matter where they are. The Justices spend plenty of time outside of Washington as it is.

Unsigned opinions. This may be the one non-facetious suggestion, and it is an intriguing one. Depersonalized justice is usually a goal of our judicial system. But the view that putting a "personal stamp" on opinions has muddied the law is directly contrary to the usual wisdom on the subject. Posner suggested, for example, that judges who rely too heavily on law clerks produce bland, flabby opinions that don't clarify the law because the law clerks are too green to separate the wheat from the chaff. Also, concurring and dissenting opinions can sharpen the debate in a case and make clear what is at stake in the dispute. A good concurring opinion might prove to be a better rule than the majority rule (Jackson in the Steel Seizure Cases or Harlan in Katz). And a good dissent may create the kind of discussion in Congress and the academy that shows the way to later reforms (Scalia in Morrison v. Olson).

If Lund and Lerner wish to harrass and humiliate the Court, these proposals will do so. But if their goal is to improve the Supreme Court's adjudication of cases, their proposals would be counterproduction.

I suspect they care more about the former goal than the latter.
3.6.2006 8:42pm
CharleyCarp (mail):
I finished that new-ish bio of Chief Justice Jay not long ago. Very full account of circuit riding, which seems a truly awful idea.
3.7.2006 7:01am
"modest proposals."

I think thats the key language most people are overlooking.
3.7.2006 8:03pm