Author Archive | Craig Lerner & Nelson Lund, guest-blogging

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 [...]

This concludes our posts (here here here and here) summarizing our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity. Tonight or tomorrow, we’ll post responses to a few of the comments.

In the Judiciary Act of 1789, Congress included service on lower federal courts among the original duties of Supreme Court Justices. This was known as “circuit riding” because they had to ride around the country on horses or in carriages to sit as circuit judges. Notwithstanding the burden it placed on the Justices, circuit riding was not formally eliminated by Congress until the early twentieth century, and the time is ripe to bring it back.

Supreme Court Justices nearly escaped the burden of circuit riding as soon as it was placed on their shoulders. The Judiciary Act of 1801, pushed through by the outgoing Federalist Congress, eliminated the practice. Within a year, the Republicans repealed the 1801 act, in part as an act of partisanship, but also in part for a reason that would echo throughout the following decades: without circuit riding, it was said, Supreme Court Justices would be cut off from the political, cultural and, most importantly, legal life of the rest of the nation.

As the nation grew, and the federal judiciary’s docket swelled, the position of Supreme Court Justice soon became, in the words of Justice McKinley, “the most onerous and laborious of any in the United States.” Many Justices had to travel over one thousand miles each year—even before the advent of railroads—in addition to their responsibilities on the Supreme Court. Bills to curtail circuit riding arose practically every decade in the nineteenth century, only to be defeated again and again.

One nineteenth century Senator remarked that if relieved from circuit riding responsibilities, Supreme Court Justices would be [...]

Today, we extend our earlier posts (here here and here) summarizing our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity.

In 1957 a young Arizona lawyer wrote an article in U.S. News and World Report entitled, “Who Writes Decisions of the Supreme Court?” Noting that Supreme Court clerks are “an intellectually high-spirited group . . . imbued with deeply held notions of right and wrong,” the author charged that, as a group, clerks were “to the left” of the typical American or member of the Court.  Perhaps not intentionally, but “unconsciously” they slanted their advice to the Justices.

The author of the article, himself a recent clerk, was William H. Rehnquist.  It is fair to say, in the recent words of another Supreme Court clerk, Kenneth W. Starr, “the role of the clerks is a hearty perennial of an issue.”  For decades, observers have complained that clerks exert an unhealthy ideological influence on the members of the Court.

Our point is somewhat different: we argue that clerks have undermined the judicial character of the Court and fueled the celebrity status of individual Justices. The Court now resembles nine discrete law firms, each with a managing partner whose ego is stroked, and whose most arduous labors are often performed, by a cadre of bright and eager twentysomethings.

(In canvassing the rise of Supreme Court clerks, we rely heavily on Todd C. Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Clerks (2006), and Artemus Ward & David Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the Unite States Supreme Court (2006).)

The first Justice to employ a clerk was Horace Gray, who took his seat in 1882. At least until 1919, however, most clerks were assigned work that would [...]

Today, we continue our series of posts (here and here) summarizing our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity.

Over the years, critics of the Supreme Court, especially political conservatives, have argued that Congress should strip it of jurisdiction over hot-button issues like abortion, busing, and school prayer. Here we advance the novel suggestion that judicial restraint can be encouraged by giving the Supreme Court more to do, not less.

In his famous analysis in the Federalist Papers, Alexander Hamilton assured his audience that the judiciary “may truly be said to have neither Force nor Will, but merely Judgment.” The executive, Hamilton noted, controls the government’s coercive force, while the legislature commands society’s material resources and prescribes the rules to which the community is subjected. By contrast, the judiciary “has no influence over either the sword or the purse, no direction either over the strength or of the wealth of the society, and can take no active resolution whatever.”

Unlike the Court envisioned by Hamilton, the modern incarnation is energetically adventurous, for the most part deciding only those legal or political issues that it deems interesting and important. Yet the Court is often wont to opine so enigmatically that little guidance is given to the lower courts, which are left to decipher the Court’s sphinx-like utterances. Furthermore, lower courts reach conflicting conclusions on many legal questions, and the Supreme Court often prefers to let the confusion “percolate” for an indefinite time.

Having ceased to be a court in a Hamiltonian sense—humble, exercising judgment rather than will—the twentieth century Court seemed to slip the surly bonds of earth. Possessing an almost unfettered power to choose their cases, they reached into the dockets of the lower courts—state and federal—and chose hundreds of cases [...]

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 [...]

We would first like to thank Eugene for inviting us to summarize and discuss the arguments in our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity. We’re looking forward to comments and constructive criticism from VC’s thoughtful and active community.

The 1987 confirmation fight over Robert Bork gave political salience to the dispute between originalism and living constitutionalism as interpretive methods. Within the academy, that dispute continues, with endless nuances, qualifications, and elaborate theoretical frameworks on both sides. Judging from subsequent confirmation proceedings, however, the debate is no longer relevant to judicial appointments. Nominees of both parties now present themselves as modest and humble servants of the law, respectful of existing precedent and without a desire to move the law in any particular direction. Most Senators on both sides of the aisle accept this as the proper model for judging, and the only real question now seems to be whether a given nominee is sincerely pledging allegiance to the accepted ideal.

Nowhere was the new consensus more vividly on display than in the most recent Supreme Court confirmation hearings. Sonia Sotomayor came before the Senate with a long and fairly bland record as a circuit judge, but also with a history of extra-judicial statements suggesting both that she thinks impartiality is unachievable and that she is untroubled by that reality. When pressed at her hearings, Sotomayor repeatedly and resolutely maintained that she would never do anything except impartially apply the law to the facts, that she had no agenda of any sort, and that she would certainly not allow her policy preferences or her own values to have the slightest effect on her decisions. All of her controversial extrajudicial statements, she claimed, had been misunderstood, or were meant to convey the opposite of what she had [...]