VC Readers on the Cult of Celebrity

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!