Abstract

http://ssrn.com/abstract=1518046
 
 

Footnotes (2)



 


 



Judicial Duty and the Supreme Court’s Cult of Celebrity


Craig S. Lerner


George Mason University School of Law

Nelson Lund


George Mason University School of Law

December 3, 2009

George Washington Law Review, Vol. 78, No. 6, pp. 1255-1299, September 2010
George Mason Law & Economics Research Paper No. 09-61

Abstract:     
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.

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.

Number of Pages in PDF File: 46

Keywords: Alexander Hamilton, constitutionalism, Democrats, extrajudicial statements, Federalist Papers, impartiality, John Roberts, John Marshall, Judiciary Committee, Marbury v. Madison, Michael Louis Seidman, originalism, per curiam opinions, Philip Hamburger, Republicans, Robert Bork, Sonia Sotomayor

Accepted Paper Series





Download This Paper

Date posted: December 8, 2009 ; Last revised: October 2, 2010

Suggested Citation

Lerner, Craig S. and Lund, Nelson, Judicial Duty and the Supreme Court’s Cult of Celebrity (December 3, 2009). George Washington Law Review, Vol. 78, No. 6, pp. 1255-1299, September 2010; George Mason Law & Economics Research Paper No. 09-61. Available at SSRN: http://ssrn.com/abstract=1518046

Contact Information

Craig S. Lerner (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
Nelson Robert Lund
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 3,721
Downloads: 625
Download Rank: 22,813
Footnotes:  2

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.313 seconds