Tuesday, July 2, 2013

What if Supreme Court Opinions Were Anonymous?

Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary.  As well they should.  But much of our discussions focus on individual Justices:  Is Justice Kennedy the "first gay Justice?"   Is Justice Alito really rude?   Is Chief Justice Roberts playing a "long game?"  And what about the tumblr "Notorious R.B.G.?  Or @SCOTUS_Scalia, a twitter account?  

DonkeyHoteySCOTUS
 
  

In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms.  Their first proposal: 

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.

They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."

Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals.  Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge.  Although who would have standing?  And what about recusal?

 RR

 [image DonkeyHotey via]

http://lawprofessors.typepad.com/conlaw/2013/07/what-if-supreme-court-opinions-were-anonymous-.html

Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef0192abd4a88d970d

Listed below are links to weblogs that reference What if Supreme Court Opinions Were Anonymous? :

Comments

Post a comment