Eminent Domain

Nelson Lund and Craig S. Lerner of George Mason Law School have an interesting article on National Review Online today. Their basic premise is that the Supreme Court Justices have become rather arrogant and preachy. They have abandoned the role originally envisioned for them by the Founders.

Judicial opinions are increasingly filled with such grandiosity as this: "“At the heart of liberty is the right to define one'’s own concept of existence, of meaning, of the universe, and of the mystery of human life"” (Planned Parenthood v. Casey). The justices freely let us know when they like or dislike a result that the law dictates, how they would have voted if they were legislators, and where they think Congress could improve the law. And sometimes we'’re even reminded that if Americans aspire to be a law-abiding people, "“their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals"” (ibid). Not much humility there.

As someone who has had the pleasure (and displeasure) of reading many Supreme Court cases from every era, I have to agree with this. However, I bet it's hard to keep your humility when you go to work every morning at a place with the word "Supreme" in its name.

In order to reform the Court into an institution that is "less adventurous and more respectful of precedent", Lund and Lerner offer four "modest proposals"...

Take away their law clerks. Each justice now has a personal staff of several top law-school graduates who serve for one year. These intelligent, energetic, and intensely ambitious young people are itching to do the hard work of studying precedents and writing opinions. It should be no surprise that modern justices have frequently assumed the more pleasant role of dictating big thoughts and deep feelings to the clerks, and editing the drafts they write.

I've been concerned about the influence of clerks since reading The Brethren, probably the best non-fiction book about the Court. However, I think that the problem lies with how some of the Justices use their clerks, not the clerks themselves. I like how Judge Easterbrook of the 7th Circuit uses his clerks. They do research, they act as a sound board for his ideas, and they assist with editing/cite checking/etc. Easterbrook writes all of his opinions himself (although he lets each clerk write one opinion each term as a gift). Keep the judge (or Justice) in the driver's seat and things will be fine.

Force them to decide common-law cases. The Supreme Court, which today has virtually total discretion to choose which cases to hear, once had little or no choice at all. Using the freedom Congress has granted them, the justices focus on the most interesting constitutional and statutory issues arising from "federal question" jurisdiction. Missing are the kind of common-law contract and tort cases that come under "diversity"” jurisdiction - that is, disputes involving issues of state law between parties from different states. There are plenty of diversity cases in the lower federal courts, but the Supreme Court almost never agrees to hear one.

Contract and tort law should stay in the state court realm. The case law and the judicial expertise is there; let it stay there.

Bring back circuit riding. Through the late nineteenth century, Congress required Supreme Court justices to serve part of their time on lower federal courts, "“riding circuit" around the country. Restoring this practice would expose the justices to the problems created by muddled Supreme Court decisions, and it would give them something healthier to do in the summer than hobnob with cosmopolites in Salzburg.

One of the 6 million perks of being a Supreme Court Justice is getting most of the summer off. I don't think any of the Justices would be excited to spend their vacation time hearing cases in the lower federal courts. I also don't know if many of the lower court judges would even want them there. Courts tend to build a nice work environment that might be upset by an outside.

It would be funny to reinstate this practice and force the Justices to do it the old way: on horseback. Who would look funnier on a horse, Justice Ginsburg or Justice Scalia?

Eliminate signed opinions. Standard practice now is for judicial opinions to be signed by the justice who wrote the opinion (or hired the clerk who wrote it). Occasionally, the justices revert to an older practice of issuing opinions per curiam, or "by the court."” Truly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to a lot of muddiness in the Court's work. We propose that Congress require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously.

This isn't a bad idea, but I don't think it would work practically. Writing style is pretty easy to identify, especially among the Justices. The Wisconsin Right to Life v Federal Election Commission decision earlier this term was a per curiam decision, but it was fairly obvious that Justice Breyer wrote it. It had his trademark "on one hand, on the other hand" comparison. Just removing the name won't make it totally anonymous.

I get the feeling that many or all of these are "modest proposals" in the Jonathan Swift sense. They just aren't hyperbolic enough to make it obvious (or very funny) though. Still, it was an interesting, if somewhat strange, article.