Federal Judges, Linda Greenhouse, SCOTUS, Supreme Court

Should Supreme Court Opinions Be Anonymous?

That’s the question posed by Linda Greenhouse, former Supreme Court correspondent for the New York Times, in an extremely interesting post on the Opinionator blog. In attempting to address “why other countries [don’t] suffer from the same toxic confirmation battles that we do,” she first notes that other nations don’t give their judges life tenure:

High-court judges [in other countries] typically serve for a single nonrenewable term of 9 to 12 years — a period during which Supreme Court justices in the United States are just getting warmed up. These shorter terms ensure frequent turnover and allay fears about a party in power being able to lock up the court for decades through the fortuity of a large number of vacancies; each vacancy naturally carries less weight.

But we’re guessing that Greenhouse, whose politics tend to fall on the left side of the aisle, actually likes having life-tenured judges who are completely unaccountable insulated from the political process. So she tosses out another idea….

That idea: make judicial opinions anonymous or unsigned — i.e., turn every opinion into a “per curiam” — and maybe eliminate or greatly reduce separate opinions, too. Greenhouse explains:

[T]here is an element of judicial behavior that in the context of American judicial behavior sounds downright bizarre, yet is common elsewhere: the absence of dissenting opinions. The constitutional courts of France, Italy and Austria, as well as the European Court of Justice, actually prohibit dissenting or other separate opinions. And such opinions are rare even where they are not explicitly banned. An occasional opinion may indicate that a certain number of justices were not in agreement, but the justices are not identified by name.

The effect is to render the members of the court all but anonymous. It is unthinkable that justices of a European court would appeal directly to public opinion, as Justices Harry A. Blackmun and Antonin Scalia did in their dueling separate opinions in a 1992 abortion case, Planned Parenthood v. Casey.

This approach would, of course, reduce judicial accountability even further (which is pretty hard to do, considering that federal judges already enjoy life tenure). It would make the workings of the judiciary, already the most opaque of the three branches, even less transparent. And, on a personal note, it would make us sad, since fiery dissents by Nino are so much fun to read.

But, in fairness, there are some good arguments in support of this proposal. Greenhouse cites academic research (out of George Mason Law, interestingly enough; Mason is hardly a hotbed of liberalism):

Two professors from George Mason University School of Law in Virginia recently proposed that Congress should cure the Supreme Court of its “cult of celebrity” by passing a statute to require that all opinions be anonymous. Unsigned opinions would “provide the justices with incentives to behave more like traditional judges and less like publicity-hungry politicians,” Craig S. Lerner and Nelson Lund wrote.

Some of us actually like — make that love — the “cult of celebrity” surrounding federal judges. Indeed, some of us have even started blogs devoted to judicial celebrity. As we wrote in the mission statement of Underneath Their Robes (which is how we got into this whole “blogging” thing in the first place):

There are some one million lawyers in the United States, but only 877 active federal judges. These 877 brilliant men and women represent the top 0.1% of American lawyers. Prior to taking the Article III bench, they distinguished themselves as practicing lawyers, state court judges, non-Article III federal judges, or legal academics. Now these superstars of the legal profession have been apotheosized, through nomination by the President and confirmation by the Senate, to life-tenured positions of tremendous power and prestige. Federal judges are the gods and goddesses of the American justice system. The decisions that they make affect all of us, touching countless aspects of our everyday lives.

In short, federal judges are legal celebrities. Although certain flashy criminal defense or plaintiffs’ lawyers might be more well-known to the general public, federal judges are the “rock stars” of the legal profession’s upper echelons.

That was written almost six years ago. Since then, the cult of celebrity around judges has only grown. Supreme Court justices are even followed around by TMZ nowadays, for crying out loud.

But even if it would make the world a less fun and interesting place — Justice Sotomayor + TMZ = awesomeness — might the Republic be better off if judges weren’t such celebrities? Check out the abstract to the thought-provoking paper by Professors Lerner and Lund, entitled “Judicial Duty and the Supreme Court’s Cult of Celebrity”:

Judging 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 proposes 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.

This sounds like a more Weberian model of the judiciary: bureaucratic and European, with judges looking and acting more like civil servants than the closest thing America has to an aristocracy. (And it might also requires justices to do actual work — yikes.)

For many, the adjectives “bureaucratic” and “European” are not positives. But one can certainly see the advantages to a system.

Anonymizing judicial opinions would probably reduce (although not eliminate) the presence of political considerations in judging. It would likely make Supreme Court confirmations, like the one we’re about to experience, less politically charged and combative. It might also reduce the influence of special interest groups, on both sides of the aisle, over the judicial nomination and confirmation process.

Making judges more anonymous would reduce the prestige of being a federal judge, perhaps, and this might lower the caliber of people interested in judicial service. On the other hand, it would reduce public interest in judges as people, thus resulting in judges enjoying more privacy — and this might cause certain publicity-shy people, previously uninterested in serving as judges due to the extra scrutiny, to consider taking the bench. It also might cause people to go into judicial service for the “right” reasons — e.g., because they want to do justice, not because they want fame, power, or sycophancy from people who used to be their peers.

We’ve rambled on long enough. Readers, what do you think? Discuss in the comments, and vote in our poll.

American (Judicial) Idol [Opinionator / New York Times]
Judicial Duty and the Supreme Court’s Cult of Celebrity [SSRN]

(hidden for your protection)

comments sponsored by

Show all comments