Posted by: captainfalcon | January 19, 2010

The law? Anon is the law!

These all seem like very good ideas (h/t):

Juding from recent confirmation hearings, there is now a consensus that Supreme Court Justices should be humble servants of the law, highly respectful toward precedent 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 judicial duty, this article propose four statutory reforms that could help the Justices stick a little closer to the promises they are expected to make, and do make, at their confirmation hearings.

First, Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.

Second, Congress should require the Court to hear at least one case certified from a circuit court for every federal question case they choose from their discretionary docket. This would reduce the temptation to assemble a docket consisting largely of interesting or high-profile cases, and encourage the Justices to grapple with more of the important but unglamorous issues vexing the lower courts.

Third, Congress should forbid law clerks to draft judicial opinions, and move them to the office of the Court’s Librarian, where they would do legal research for the Court rather than for individual Justices. Truly humble and old-fashioned judges should study the precedents themselves, discuss the law with their colleagues (rather than with their handpicked votaries), and write their own opinions.

Fourth, Congress should require Justices to serve part of their time on lower federal courts, as they did for the first century of the republic’s existence. Restoring “circuit riding” would give the Justices some on-going experience with playing the role of a modest judge whose decisions are subject to appellate review and who is often required to interpret and apply muddled Supreme Court opinions.

If serving as a Supreme Court Justice were to become a full-time, non-delegable job with fewer opportunities for personal aggrandizement, the Justices would behave more like judges than legal celebrities, Presidents would have more incentive to appoint genuinely able people, and fewer Justices would insist on staying in the saddle past the time when they can even mount the horse.



  1. I think 2-4 are all great ideas (although 2 would make for such a packed docket as to make 4 infeasible). I fail to see how 1 changes anything really, especially since we will know how justices are voting.

  2. Quibbles with each of your complaints.

    a) SCOTUS’s docket is currently light enough to absorb additions (which, in fact, would be substitutions; if all went according to plan SCOTUS would be disincentivized to grant cert in those high profile, but practically inconsequential, cases that, for political reasons, they currently like to accept). Also, if their proposals worked as planned SCOTUS would issue fewer concurrences and dissents, with the result that less time would have to be spent per case.

    b) The fact that we know how justices vote doesn’t imply that we know what opinions they write. True, we’ll know what opinion ONE justice has written in every 8-1 decision. Otherwise, it’ll all be speculation. Speculation that might – or might not – be reliable, but in which the MSM will, due to its professional norms, not permit itself to indulge. The upshot will be that whose opinions are whose won’t be as broadly disseminated, fame won’t accrue as readily to those who write scathingly, and writing scathingly will lose one of its main sources of appeal.

  3. Thanks for the clarification on both. If what you say is true (though I think idle speculation is the beating heart of the MSM), then all four seem like good ideas.

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