Incentives and the supreme court

George Washington Law Review

Volumn 78, Issue 6, 2010, Pages 1300-1309

  Tushnet, Mark ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78149323430     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (50)

1. A related difficulty is that if reform proposals directed at a single institution were adopted, they would have to mesh with the operation of other institutions. Reformers typically, though not always, do not think through the issues associated with integrating their proposals with the rest of the government. Sometimes, of course, reform proposals are comprehensive, addressing legislative, executive, and judicial institutions, but then the analysis of how the reforms would operate in practice is even more difficult.
2. Craig S. Lerner & Nelson Lund, Judicial Duty and the Supreme Court's Cult of Celebrity, 78 GEO. WASH. L. REV. 1255 (2010). I note here some quibbles with their analysis that do not raise serious problems. First, their discussion of the Court's deliberative processes relies on information about the Rehnquist and earlier Courts, id at 1270-71, and there is some reason to think that those processes have changed a bit recently. The chatter among Supreme Court watchers is that the near absence of inter-Justice deliberation on the Rehnquist Court resulted from the reaction of Chief Justice William Rehnquist and his colleagues to Chief Justice Warren Burger's mismanagement of the Court's deliberations.
3. See JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 33-35 (2007). In reaction, Chief Justice Rehnquist used an iron hand to run the Justices' conferences, a practice that Chief Justice John Roberts may have relaxed. See id. at 358. Second, their account is inaccurate to the extent that it fails to discuss the role of the so-called cert pool of law clerks in shaping the discretionary docket and the pool's independence from the individual Justices. Clerks participating in the pool cannot prepare memos acting as acolytes for their Justices, and, as I understand it, they do not. Third, a minor point, but one of personal privilege: Professors Lerner and Lund assert that law clerks for every Justice appointed after Earl Warren prepared bench memos for their Justices.
4. See Lerner & Lund, supra note 2, at 1291. In 1972-73, Justice Thurgood Marshall's law clerks did not do so. The Justice read the briefs and used the memos written at the cert stage to organize his thinking before oral argument. Finally, the connection between the cult of celebrity and its asserted causes-the use of signed opinions and the growth of the discretionary docket-is unelaborated and the timing seems odd, with events in the early nineteenth century and the 1920s having their effects only in the late twentieth century. See id. at 1265-67,1276-78. A causal account in which discreet policy changes accumulate and eventually have a dramatic and unintended effect is of course possible, but it ought to be provided. If the causal account is absent or is implausible, the good-government reforms Professors Lerner and Lund offer might have no effect on the cult of celebrity surrounding the Justices.
5. See Lerner & Lund, supra note 2, at 1281, 1294. Their discussion appears to suggest that the pool of potential nominees would change in ways of which they approve, but I find no systematic consideration of how it would change, or why the changes would be of the sort supported by Professors Lerner and Lund.
6. See id. at 1267-68.
7. See id. at 1281, 1303.
8. Here Professors Lerner and Lund stumble in assuming that changing the Justices' compensation would not affect the willingness of potential nominees to accept a nomination. They suggest that "a President would [not] need to engage in much arm-twisting to persuade any law firm partner to forego a seven-figure salary in private practice to become a Supreme Court Justice." Id. at 1263. This is simply wrong as a matter of economics. Even if no arm-twisting is required given the present income associated with the position, reducing that income would necessarily affect the nominee's willingness to accept the position. It is also wrong empirically.
9. In recent years several people declined nominations when approached, including Mario Cuomo and George Mitchell. Douglas Jehl, Mitchell Rejects President's Offer of Seat on Court, N.Y. TIMES, Apr. 12, 1994, at Al, B13;
10. Kevin Sack, Cuomo Announces He Is Not Seeking Seat on High Court, N.Y. TIMES, Apr. 8, 1993, at B5;
11. see also Lerner & Lund, supra note 2, at 1263 n.25 (discussing Justice Arthur Goldberg's resignation from the Supreme Court to accept the position of Ambassador to the United Nations). I should note that I find Justice Goldberg's resignation a patriotic act, hardly baffling as Professors Lerner and Lund seem to suggest. See id. Admittedly, Cuomo and Mitchell were politicians, not partners in major law firms, but the principle is the same. In any event, the seeming emergence of a norm that nominees must have some judicial experience suggests that few partners in major law firms are in the pool of prospective nominees (although the recent nomination of Solicitor General Elena Kagan may signal a new trend). The assumption that no one would turn down a nomination regardless of the compensation associated with it reflects either the legal academy's parochialism or the acceptance by Professors Lerner and Lund of something like the cult of celebrity.
12. Lerner & Lund, supra note 2, at 1294.
13. Id. at 1297-99. It seems to me that Professors Lerner and Lund assume that circuit riding would involve travel to other courthouses, but it is not clear that this assumption holds given modern technology. Additionally, imposing circuit-riding duties on sitting Justices would raise anew the constitutional question addressed in Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803), which upheld the reimposition of circuit riding by Supreme Court Justices, a practice which had been abolished only one year earlier, id. at 309. The Court relied exclusively on the fact that Congress had reimposed circuit-riding duties after a brief interruption, that is, on a traditionalist analysis. Id With circuit riding abolished for more than a century, such an analysis is weaker today than in 1803, leaving in place the textualist analysis-that judges are confirmed to positions with statutorily defined characteristics, which cannot be altered to the judges' disadvantage-that was at the heart of the challenge in Stuart. Id. at 305.
14. Lerner & Lund, supra note 2, at 1294.
15. See Adrian Vermeule, Selection Effects in Constitutional Law, 91 VA. L. REV. 953, 961-62 (2005) (discussing the effect of judicial compensation on the nominee pool, leading to a pool which may be more focused on the nonpecuniary benefits of judicial office). Perhaps Professors Lerner and Lund assume that their proposals' marginal effects on net income are too small relative to gross income to change the pool's composition significantly. If so, that assumption seems in tension with their treatment of the cult of celebrity, which seems to assume that the cult of celebrity provides significant psychic income. See Lerner & Lund, supra note 2, at 1267-68. Here, their analytic unclarity is particularly problematic. Adrian Vermeule pointed out to me that there might be two selection effects, one reducing the pool's average quality and the other reducing the pool's average narcissism. The effects might interact so as to increase the average quality of the Court's output. I agree that this is a possibility, which is part of the reason for my tentativeness in the text, but we would need a much more thorough analysis of these mechanisms than Professors Lerner and Lund supply to be confident that their proposed reforms would improve the average quality of the Court's work product.
16. Professors Lerner and Lund write that if the reforms they propose were adopted, Justices would be "less inclined to pursue individual glory and more concerned with the Court's overall reputation." Lerner & Lund, supra note 2, at 1288. The first observation is true; the latter is more questionable. Indeed, I find it difficult to imagine why Justices with reduced incomes would substitute concern for the Court's reputation for their lost celebrity. I would assume that after these reforms, the Justices would substitute leisure for work, as we tend to assume ordinary bureaucrats do by leaving the job precisely at 5:00 p.m. It would be helpful to have an analysis of the possibility of doubling or tripling the size of the Court; this is perhaps a more obvious way of eliminating the cult of celebrity, although it is no less politically unrealistic than Professors Lerner and Lund's proposals.
17. Id. at 1302-03. Here is an area where Professors Lerner and Lund could offer more detail about the interaction among their proposals. They reassure readers that the importance of the Court's cases would give the Justices an incentive not to shirk despite the anonymity of their work product. Id at 1281. At the same time, their proposal for certification from circuit courts, and especially their hope that such certification will bring larger numbers of "mundane" cases to the Court, id. at 1288 n.166, would change the importance of the cases considered by the Court, thereby raising questions about the persistence of the incentive against shirking.
18. I do not consider the possibility of reversion to the pre-Chief Justice John Marshall practice of seriatim opinions because it falls outside the scope of the proposals offered by Professors Lerner and Lund. The use of seriatim opinions by some courts does cast some doubt-not much, I concede-on part of the causal account of the rise of the cult of celebrity in the United States. Both the Supreme Court of Canada and the High Court of Australia use seriatim opinions, although often with a lead opinion. Peter McCormick, Standing Apart: Separate Concurrence and the Modern Supreme Court of Canada, 1984-2006, 53 MCGILL L. J. 137, 160 (2008). Before its replacement by a supreme court, the British House of Lords also used seriatim opinions.
19. See WILLIAM D. POPKIN, EVOLUTION OF THE JUDICIAL OPINION: INSTTTUTIONAL AND INDIVIDUAL STYLES 42 (2007). It would be interesting to investigate whether there is a cult of celebrity associated with members of those courts, but my impression is that there is not, although of course individual judges are well known among legal eÛtes. Seriatim practice seems even more likely to generate celebrity for the writing Justice than the current practice in the United States, and the seeming absence of a cult of celebrity elsewhere suggests that the cult in the United States arises from other aspects of the legal culture. For additional discussion, see infra text accompanying notes 36-41.
20. The European Court of Justice ("ECJ") uses unsigned opinions with no dissents, as do the French courts. See Michel Rosenfeld, Comparing Constitutional Review by the European Court of Justice and the U.S. Supreme Court, 4 INT'L J. CONST. L. 618, 635 (2006). In its decisions on the merits, the European Court of Human Rights uses unsigned majority opinions, separate opinions listing the names of the dissenters, and occasional separate opinions issued under a single name (a practical necessity in the event that only one judge writes separately).
21. See Lech Garlicki, Judicial Deliberations: The Strasbourg Perspective, in THE LEGITIMACY OF HIGHEST COURTS' RULINGS: JUDICIAL DELIBERATIONS AND BEYOND 389, 396 (Nick Huls et al. eds., 2009). In its preliminary opinions, the European Court of Human Rights uses unsigned majority opinions accompanied by an indication of how many judges dissented. See id.
22. Cf. Printz v. United States, 521 U.S. 898, 921 n.11 (1997) (stating that "comparative analysis . .. was of course quite relevant to the task of writing" the Constitution).
23. FRED R. SHAPIRO, THE OXFORD DICTIONARY OF AMERICAN LEGAL QUOTATIONS 307 (1993) (quoting Letter from Thomas Jefferson to Thomas Ritchie (Dec. 25, 1820)).
24. See, e.g., Vlad Perju, Reason and Authority in the European Court of Justice, 49 VA. J. INT'L L. 307, 310 (2009) (asserting that the ECJ's "justificatory style has often been criticized as overly abstract, vague, and elliptical" and citing a former member of the court as saying that the court's "judgments read ... like documents drafted by committee").
25. See id Professors Lerner and Lund express a similar set of concerns with the United States Supreme Court. See Lerner & Lund, supra note 2, at 1281 (referring to the Court's "unintelligibly splintered decisions that so frustrate the bar [and] the lower courts");
26. id. at 1287 (referring to the Court's "fact-bound opinions").
27. See, e.g., Mary Pilon, Anti-Plagiarism Programs Look over Students' Work, USA TODAY, May 23, 2006, at 10D (discussing the growing use of plagiarism-detecting software by universities).
28. See, e.g., Posting of Orin Kerr to The Volokh Conspiracy, http://volokh.com/2010/01/13/ hollingsworth-v-perry-bush-v-gore-and- manipulating-procedural-rules-in-high-profile-litigationimpacting-the-political- process/ (Jan. 13, 2010, 6:39 PM EST) ("[I]f I had to guess, I would guess that both per curiam opinions had the same author, Justice Kennedy."). Such speculation can also fuel the conspiracy theories previously mentioned.
29. This "reverse engineering" of opinions might diminish the risk that Adrian Vermeule pointed out to me that anonymous opinions combined with signed separate opinions might produce a lack of accountability for majority opinions while permitting Justices to be self indulgent in their separate opinions.
30. Lerner & Lund, supra note 2, at 1282.
31. Perhaps the prior writings would have all been ghostwritten by law clerks, law firm associates, or speechwriters and would betray nothing about the Justice's personal style. The proposed elimination of law clerks would mean that Supreme Court opinions would be written without such assistance and could therefore be quite distinct from a Justice's prior writings. I am skeptical, however, that even ghostwritten works betray nothing about a person's individual style, at least over an extended period during which a number of different law clerks, associates, and speechwriters provide assistance. An additional wrinkle arises from transition problems, which affect the politics of getting the proposal adopted. A database of signed opinions exists for sitting Justices, and plagiarism-detecting programs-and ordinary common sense-would find it easy to determine which of the sitting Justices wrote an anonymous opinion. (For example, the distinctive writing styles of Justices Antonin Scalia and Ruth Bader Ginsburg would persist into the era of anonymous opinions.) These effects might dissipate as sitting Justices are replaced, but the fact that the proposal would not have any significant immediate effects reduces the incentive for politicians to adopt it. For additional discussion, see infra Part III.
32. See generally MITCHEL LASSER, JUDICIAL DELIBERATIONS: A COMPARATIVE ANALYSIS OF JUDICIAL TRANSPARENCY AND LEGITIMACY (2004).
33. This would empower the scholarly community, a phenomenon that I suspect Professors Lerner and Lund would view with skepticism.
34. See LASSER, supra note 24, at 39-40, 309.
35. Such a system would not fit, partly because Professors Lerner and Lund do not suggest that anonymous opinions should lose the discursive quality of current Supreme Court opinions. I suspect, though, that a system of anonymous opinions would reduce the present level of discursiveness, both because of the pressures for compromise were a norm of consensus to emerge and because an anonymous opinion's author has less incentive to devote time to the opinion's development and polishing.
36. Put another way, Professors Lerner and Lund offer a partial equilibrium analysis when what is required is a general equilibrium one.
37. I developed this argument in Mark Tushnet, How Different Is Writing Small from Writing Large?, 18 THE GOOD SOCIETY 16 (2009),
38. a comment on ADRIAN VERMEULE, MECHANISMS OF DEMOCRACY: INSTITUTIONAL DESIGN WRIT SMALL (2007).
39. See Tushnet, supra note 29, at 17.
40. See VERMEULE, supra note 29, at 66.
41. See Tushnet, supra note 29, at 19.
42. See supra note 23.
43. See VERMEULE, supra note 29, at 66-70 (discussing the difficulties associated with adopting proposals where implementation is delayed).
44. See supra text accompanying notes 10-11.
45. As this Essay suggests, the anonymous opinion proposal on which I have focused most of my attention would not have any effect on Justices like those now on the Court who have a substantial database for use by plagiarism-detecting programs. See supra note 23. The increased workload that would arise from the proposed change in the use of law clerks and the imposition of circuit-riding duties could place a heavier burden on older Justices.
46. I can imagine a political world in which Professors Lerner and Lund's proposals would be enthusiastically endorsed by liberals and opposed by conservatives, and that might be the world a few years from now when the political process grinds its way to taking those proposals seriously. I can also imagine a political world in which the proposals would be endorsed by liberals and conservatives alike, in a coalition formed around dismay at an "activist" Court, with liberals and conservatives identifying different decisions as exemplifying activism. I think this quite unlikely, however.
47. See Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 HARV. L. REV. 1061, 1097-99 (2010) (describing the rise of judicial elections during the decades immediately preceding the Civil War).
48. See Luke Bierman, Beyond Merit Selection, 29 FORDHAM URB. L. J. 851, 854-55 (2002).
49. The endorsement probably will remain implicit not for any Machiavellian or Straussian reasons, but because bureaucratization is the long-run effect of the incentives the proposals offer to prospective Justices, and it is likely to be extremely difficult to explain that effect in ordinary political venues.
50. I note, however, that a condition for this process is that the proposal or proposals must have no obvious partisan valence, and that, if nothing else, the tone of Professors Lerner and Lund's article gives it a rather strong partisan tinge.