Judicial duty and the supreme court's cult of celebrity

George Washington Law Review

Volumn 78, Issue 6, 2010, Pages 1255-1299

  Lerner, Craig S ^a   Lund, Nelson ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 78149335970     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (292)

1. See Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to Be an Asso- ciate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 120 (2009) (statement of Sonia Sotomayor).
2. See id.
3. As this Article was going to press, the Senate Judiciary Committee held hearings on the nomination of Elena Kagan to the Supreme Court. A preliminary review of the unofficial transcripts indicates that she displayed the same reverence for the traditional ideal as other recent nominees. For example: Well, Senator Sessions, I'm not quite sure how I would characterize my politics. But one thing I do know is that my politics would be, must be, have to be completely separate from my judging. And I-I agree with you to the extent that you're saying, look, judging is about considering a case that comes before you, the parties that comes [sic] before you, listening to the arguments they make, reading the briefs they file, and then considering how the law applies to their case-how the law applies to their case-not how your own personal views, not how your own political views might suggest, you know, anything about the case, but what the law says, whether it's the Constitution or whether it's a statute. Elena Kagan-Confirmation Hearings Transcript, Day 2, WASHINGTONPOST.COM, June 29, 2010, http://www.washingtonpost.com/wp-srv/politics/documents/ KAGANHEARINGSDAY2.pdf.
4. When pressed about President Obama's statement that "the critical ingredient of [difficult] cases is supplied by what is in the judge's heart," Kagan (like Sotomayor) refused to agree with the President who nominated her: Senator Kyl, I don't know what was in the-I don't want to speak for the president, I don't know what the president was speaking about specifically.... [A]t the end of the day what the judge does is to apply the law. And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it's law all the way down.
5. Id.
6. Asked about "the idea of a living Constitution," Kagan said: You know, I-I think that-I-I don't particularly think that the term is apt, and I especially don't like what people associate with it. I think people associate with it a kind of loosey-goosey style of interpretation in which anything goes, in which there are no constraints, in which judges can import their own personal views and preferences. And I most certainly do not agree with that. I think of the job of constitutional interpretation that the courts carry on as a highly constrained one, as constrained by text, by history, by precedent and the principles embedded in that-in that precedent. So the courts are-are-are limited to specifically legal sources. It's a highly constrained role, a circumscribed role. So-so to the extent that that term is used in such a way as to suggest that that's not the case, I-I don't agree with that. But I do think, as-as I just indicated, that the Constitution, and specifically- not the entire Constitution, but the general provisions of the Constitution, that the genius of the drafters was-was to draft those so that they could be applied to new conditions, to new circumstances, to changes in the world.
7. Id.
8. The Federalist Society Online Debate Series, The Sotomayor Nomination, Part II (July 13, 2009), http://www.fed-soc.org/debates/dbtid.30/default.asp.
9. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
10. PHLIP HAMBURGER, LAW AND JUDICIAL DUTY (2008).
11. For a more detailed discussion of Hamburger's argument, see Nelson Lund, Judicial Review and Judicial Duty: The Original Understanding, 26 CONST. COMMENT. 169 (2009).
12. See THE FEDERALIST NO. 78, at 529-30 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
13. Professor Tushnet believes he detects a "rather strong partisan tinge" in the "tone" of our article. Mark Tushnet, Incentives and the Supreme Court, 78 GEO. WASH. L. REV. 1300,1309 n.41 (2010). We confess that we are baffled as to which party we sound like partisans of.
14. For a sample of various proposals, see REFORMING THE SUPREME COURT. TERM LIMITS FOR SUPREME COURT JUSTICES (Roger C. Cramton & Paul D. Carrington eds., 2006);
15. John O. McGinnis, Justice Without Justices, 16 CONST. COMMENT. 541 (1999);
16. Saikrisbna B. Prakash, America's Arbtocracy, 109 YALE L.J. 541, 568-84 (1999) (book review);
17. Symposium, Term Limits for Judges?, 13 J.L. & POL. 669 (1997).
18. See David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for the "Golden Parachute," 83 WASH. U. L.Q. 1397, 1400 (2005).
19. Our proposals are not modest in the Swiftian sense. After a draft of this Article was posted on the Social Science Research Network, Michael Rush of Melbourne, Australia, called our attention to several features of that nation's practice that resemble some of our proposals. See generally THE OXFORD COMPANION TO THE HIGH COURT OF AUSTRALIA (T. Blackshield, M. Coper & G. Williams eds., 2002).
20. For a proposal that suggests how modest our suggestions are, see MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999) (proposing that courts be forbidden to enforce the Constitution, and urging that it be effectively replaced with a different constitution consisting approximately of part of one paragraph from the Declaration of Independence along with selected parts of the current Constitution's Preamble).
21. Empirical evidence about the orientation of the Justices toward elite opinion is developed in Lawrence Baum & Neal Devins, Why the Supreme Court Cares About Elites, Not the American People, 98 GEO. LJ. (forthcoming 2010).
22. We think this point is an obvious one, but we are happy to see it elaborated at some length in Professor Tushnet's response. Tushnet, supra note 9, at 1307-09.
23. THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 8, at 523.
24. THE FEDERAUST NO. 81, at 545-46 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
25. THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 8, at 523.
26. Id. at 522-23.
27. Id. at 523 (emphasis added).
28. Id. at 529-30.
29. Id at 529;
30. THE FEDERAUST NO. 81 (Alexander Hamilton), supra note 16, at 544.
31. Contrary to Professor Tushnet's mistaken inference, Tushnet, supra note 9, at 1301 n.6, we have not implied, in this sentence or anywhere else, that changing the Justices' compensation would have no effect on the willingness of some potential nominees to accept an appointment. See infra text accompanying notes 196-97.
32. See Maeva Marcus, Federal Judicial Selection: The First Decade, 39 U. RICH. L. REV. 797, 804-05 (2004).
33. Felix Frankfurter, Chief Justices I Have Known, 39 VA. L. REV. 883, 884 (1953).
34. Twelve years after Frankfurter's statement, President Lyndon B. Johnson (who wanted to appoint Abe Fortas to the Court) prevailed upon Arthur Goldberg to resign and become our Ambassador to the United Nations.
35. See David A. Kaplan, The Reagan Court-Child of Lyndon Johnson?, N. Y. TIMES, Sept. 4,1989, at L27. Goldberg's decision is probably best seen as a monument to Johnson's extraordinary ability to make offers that were hard to refuse.
36. See G. Edward White, The Working Life of the Marshall Court, 1815-1835, 70 VA. L. REV. 1, 3 (1984).
37. Id. at 34-35.
38. Id. at 1, 30.
39. See JULIUS GOEBEL JR., ANTECEDENTS AND BEGINNINGS TO 1801, at 665 (The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States, vol. 1, 1971).
40. Id app. at 803 tbl.2.
41. Id. app. at 804 tbl.3.
42. Laura Krugman Ray, Lives of the Justices: Supreme Court Autobiographies, 31 CONN. L. REV. 233, 234 (2004) ( quoting CHARLES FAIRMAN, RECONSTRUCTION AND REUNION, 1864-88, PART ONE 6 (The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States, vol. 6, 1971)).
43. See Joshua Glick, Comment, On the Road: The Supreme Court and the History of Circuit Riding, 24 CARDOZO L. REV. 1753, 1797-98 (2003).
44. Id. at 1757.
45. Id. at 1758.
46. Id. at 1802-03.
47. Letter from Roger Sherman to Simeon Baldwin (Jan. 21, 1791), in 4 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800, at 550-51 (Maeva Marcus et al. eds., 1992).
48. Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803).
49. 33 ANNALS OF CONG. 126 (1819) (statement of Sen. Smith).
50. Id. at 130 (statement of Sen. Lacock).
51. Act of Mar. 3, 1891 (Evarts Act), ch. 517, 26 Stat. 826.
52. See Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 COLUM. L. REV. 1643, 1649 (2000).
53. Evarts Act §2, 26 Stat, at 826.
54. Id. §6, 26 Stat, at 828.
55. Id.
56. In addition, parties could request a writ of certiorari, which was understood "as a sort of fallback provision should the circuit courts of appeals prove, on occasion, to be surprisingly careless in deciding cases or issuing certificates." Hartnett, supra note 42, at 1656.
57. See Arthur D. Hellman, The Business of the Supreme Court Under the Judiciary Act of 1925: The Plenary Docket in the 1970's, 91 HARV. L. REV. 1711, 1712 (1978).
58. Act of Feb. 13, 1925 (Judges' Bill), ch. 229, 43 Stat. 936.
59. See Hartnett, supra note 42, at 1704 n.364 ("In 1924, 40% of the cases filed in the Supreme Court were within the Court's obligatory jurisdiction, with 60% of the filings left to the Court's discretion to decide whether to decide. In 1930, the percentage of obligatory filings fell to 15%, with 85% left to the Court's discretion."
60. (citing GERHARD CASPER & RICHARD POSNER, THE WORKLOAD OF THE SUPREME COURT 20 (1976))).
61. Id. at 1704-05.
62. Id. at 1705.
63. See id. at 1705-08 & n.379.
64. Id. at 1708 (discussing SUP. CT. R. 12).
65. Unstinting hostility to such certifications depressed the numbers of such appeals from seventy-two during the first decade after the implementation of the Judges' Bill to twenty the following decade.
66. Id. at 1710-11.
67. Such certifications soon became extremely rare. In 1957, the Court rebuked a lower court for bothering the Supreme Court with a legal issue that had merely generated an intracircuit conflict.
68. See id. at 1711-12.
69. Recently, Justices Stevens and Scalia rather forlornly objected to the Court's decision to dismiss a certification. See United States v. Seale, 130 S. Ct. 12 (2009).
70. Act of June 27,1988, Pub. L. No. 100-352,102 Stat. 662;
71. see Arthur D. Hellman, The Shrunken Docket of the Rehnqubt Court, 1996 SUP. CT. REV. 403, 409.
72. Hartnett, supra note 42, at 1648.
73. THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 8, at 523.
74. Cf. Ray, supra note 32, at 238 ("As the Court took on highly divisive issues that directly touch the lives and values of the American people, the Justices found themselves increasingly recognized as individual figures rather than aspects of a remote and undifferentiated government entity.");
75. Jesse J. Holland, Sotomayor Adds Celebrity to High Court, MSNBC.COM, NOV. 17, 2009, http://www.msnbc.msn.com/id/33975806 ("Since becoming the first Hispanic Justice, Sotomayor has mamboed with movie stars, exchanged smooches with musicians at the White House and thrown out the first pitch for her beloved New York Yankees.").
76. Justice Ginsburg, for example, was named to the Jewish American Hall of Fame in 1994.
77. Henri Sault, A Medal for Justice Ginsburg, PHILA. INQUIRER, Apr. 24,1994, at E5.
78. Justice Scalia was the Grand Marshall of Manhattan's Columbus Day Parade. Pat Milton, Scalia Leads Columbus Day Parade in N.Y.; Future Justice Marched as a Kid, RECORD, Oct. 11, 2005, at A4.
79. See Bill Mears, Supreme Court Justices: Well-Off, Well-Traveled, CNN.COM, June 8, 2007, http://money.cnn.com/2007/06/08/news/newsmakers/scotus-finances/ (referring to Justices Scalia, Kennedy, Ginsburg, and Breyer as "[g]lobe-trotting Justices").
80. See, e.g., Mark Sherman, With New Book Coming Out, Scalia Getting Less Camera-Shy; Permits Coverage for "60 Minutes" Profile, RECORD, Apr. 10, 2008, at A19.
81. Jonathan Sternberg, Deciding Not to Decide: The Judiciary Act of 1925 and the Dbcretionary Court, 33 J. SUP. CT. HIST. 1, 5 (2009).
82. Cf. ARTEMUS WARD & DAVID L. WEIDEN, SORCERERS' APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT 30 (2006) (stating that in the period of 1882-1918, "Congress provided funds for a single stenographer for each justice").
83. A desire to see the Justices burdened with more work for its own sake would be rather graceless coming from fellow public servants like us, whose workload could not be called unduly oppressive.
84. See James C. Phillips & Edward L. Carter, Source of Information or "Dog and Pony Show"?: Judicial Information Seeking During U.S. Supreme Court Oral Argument, 1963-1965 & 2004-2009, 50 SANTA CLARA L. REV. 79, 91-92 (2010).
85. Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802 (1982).
86. Id at 831.
87. See, e.g., McDonald v. City of Chicago, No. 08-1531, slip op. at 1 (U.S. June 28, 2010) (Thomas, J., concurring in part and concurring in the judgment) (refusing to apply the Court's well-settled selective incorporation doctrine under substantive due process and reconsidering the original meaning of the Privileges or Immunities Clause);
88. E. Enters, v. Apfel, 524 U.S. 498, 538-39 (1997) (Thomas, J.,
89. concurring) (questioning Colder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and its progeny);
90. United States v. Lopez, 514 U.S. 549, 584-602 (1995) (Thomas, J., concurring) (questioning the Court's Commerce Clause jurisprudence, particularly the substantial effects test).
91. There is a conflict, or tradeoff, noted as early as ARISTOTLE, POLITICS 1269a8-24, at 58 (Peter L. Phillips Simpson trans., 1997), between the desirability of improving the law and the undesirability of fostering disrespect for the law by frequent or unnecessary changes in it. This Article does not address that general problem, or the more specific questions about the tradeoffs between principles of stare decisis and principles of fidelity to the original meaning of the Constitution and statutes.
92. Easterbrook, supra note 65, at 831.
93. For discussion of a recent example, see Nelson Lund, Heller and Second Amendment Precedent, 13 LEWIS & CLARK L. REV. 335 (2009).
94. Cf. Jeffrey Rosen, Roberts's Rules, ATLANTIC, JanVFeb. 2007, at 104-05 (discussing characterizations of past Chief Justices).
95. See Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) [hereinafter Roberts's Confirmation Hearing] (statement of John G. Roberts, Jr.).
96. DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 132 (8th ed. 2008) (internal quotation marks and citation omitted). It is reported that when Potter Stewart joined the Court, he expected to find "one law firm with nine partners." Justice Harlan corrected him: "No, you will find here it is like nine firms, sometimes practicing law against one another."
97. Id. (internal quotation marks and citation omitted).
98. See Margaret Raymond, The Importance of Being Important, 84 IOWA L. REV. 147, 150 & nn.16-17 (1998) (discussing details disclosed in EDWARD LAZARUS, CLOSED CHAMBERS (1998), an exposé written by a former Justice Blackmun clerk). The times being what they are, perhaps we should note that we sometimes use "he" as an indefinite pronoun, referring to people of both sexes, without disrespect to either.
99. See Sally J. Kenney, Puppeteers or Agents? What Lazarus's Closed Chambers Adds to Our Understanding of Law Clerks at the U.S. Supreme Court, 25 LAW & Soc. INQUIRY 185, 198-99 (2000).
100. See id. at 194-95. This practice may be changing somewhat under the new Chief Justice, who has spoken openly of his desire to persuade his colleagues to subordinate their individual agendas and behave more like a collégial and institutionally oriented body.
101. See Rosen, supra note 71, at 105-06.
102. Chief Justice Roberts has gone so far as to say (publicly!) that his model is none other than Chief Justice Marshall himself.
103. Id. at 106.
104. Admirable as this ambition may be, we are skeptical about his, or any other Chief Justice's, chances of producing major and lasting changes in this direction through his own efforts.
105. See White, supra note 26, at 34-35.
106. Accusations of insufficient respect for precedent still seem to demand a response. Compare, e.g., Montejo v. Louisiana, 129 S. Ct. 2079 (2009) (Alito, J., concurring)
107. (criticizing the opinion of Justice Stevens in Arizona v. Gant for overturning precedent), with id at 2099 n.5 (Stevens, J., dissenting) (responding that his opinion in Gant did not in fact overturn earlier precedent and counterclaiming that Alito's claimed fealty to precedent is specious in light of his willingness to overturn precedent in Montejo).
108. Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. CT. ECON. REV. 1 (1993).
109. Posner's views have evolved since this article was published, see, e.g., RICHARD A. POSNER, How JUDGES THINK (2008), but for our purposes here we think it is more useful to focus on his earlier analysis. Accordingly, all subsequent citations are to Posner's earlier article.
110. See Posner, supra note 79, at 3, 25.
111. Id. at 15-16.
112. Id at 24.
113. Id at 28-29.
114. Id. at 3. Posner continues: In fact, I assume that trying to change the world plays no role in [the judicial utility] function. Not that judges are indifferent to power; they enjoy, I shall argue, the power that goes with deciding cases. But only a small minority, whom I shall largely ignore, have a visionary or crusading bent.
115. Id (citation omitted).
116. Id. at 2.
117. At various points in the article, Posner does note some of the relevant differences between the two groups of jurists. He predicts, for example, that there will be more campaigning for Supreme Court seats and that Justices will work harder than circuit judges, id. at 38, but we think the significance of other differences that he does not discuss are greater than he recognizes.
118. Id at 40.
119. Id. at 14.
120. See id. at 17.
121. Id.
122. Id. at 20.
123. Id. at 20-21.
124. Id. at 3.
125. Id at 3-4.
126. Id at 4;
127. cf. Roberts's Confirmation Hearing, supra note 72, at 55 (statement of John G. Roberts, Jr.) ("Judges are like umpires. Umpires don't make the rules, they apply them .... Nobody ever went to a ball game to see the umpire.").
128. See Karl M. ZoBell, Division of Opinion in the Supreme Court A History of Judicial Disintegration, 44 CORNELL L. REV. 186, 187-91 (1959).
129. See Craig Joyce, The Rise of the Supreme Court Reporter An Institutional Perspective on Marshall Court Ascendancy, 83 MICH. L. REV. 1291, 1296 (1985).
130. Id at 1298-99.
131. See id at 1295-96, 1304.
132. See John P. Kelsh, The Opinion Delivery Practices of the United States Supreme Court 1790-1945, 77 WASH. U. L.Q. 137,140 (1999).
133. Id.
134. See id at 141.
135. See id at 143-44.
136. See id at 145-46.
137. From 1801 to 1806, there were only five cases with seriatim opinions.
138. Id. at 144.
139. Id. at 145.
140. See White, supra note 26, at 36-37.
141. Id at 34.
142. Kelsh, supra note 100, at 177. 110 See id. at 151.
143. Id at 151-52.
144. Mason v. Haile, 25 U.S. (12 Wheat.) 370, 379 (1827) (Washington, J., dissenting) (emphasis added).
145. Some Justices do occasionally change their views, and sometimes acknowledge it. But this often just serves to accentuate how individualistic their jurisprudence is.
146. See, e.g., United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 349 (2007) (Thomas, J., concurring in the judgment) (repudiating the Court's Dormant Commerce Clause jurisprudence as well as a precedent in which he had joined);
147. Tennessee v. Lane, 541 U.S. 509, 556-58 (2004) (Scalia, J., dissenting) (rejecting a "congruence and proportionality" test he had previously endorsed, but which he then wished the Court would abandon).
148. Kelsh, supra note 100, at 154.
149. Id. at 157-58.
150. Id at 157.
151. See Ruth Bader Ginsburg, Remarks on Writing Separately, 65 WASH. L. REV. 133, 142-43 (1990) (citing A. BICKEL, THE UNPUBLISHED OPINIONS OF MR. JUSTICE BRANDEIS (1957)).
152. See Kelsh, supra note 100, at 160.
153. Id at 171-73.
154. Id. at 173.
155. Id. at 175.
156. Id. at 177.
157. Thomas Walker et al., On the Mysterious Demise of Consensual Norms in the United States Supreme Court, 50 J. POL. 361, 384 (1988).
158. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L REV 1185 1192 (1992).
159. Id.
160. Id at 1193.
161. See Posner, supra note 79, at 19.
162. See Ginsburg, supra note 124, at 1192-93.
163. We first made this proposal in Nelson Lund & Craig S. Lerner, Precedent Bound?, NAT'L REV. ONLINE, Mar. 6, 2006, http://www.nationalreview. com/comment/lund-lerner200603 060828.asp. Subsequently, a thoughtful student note suggested that the Justices should voluntarily stop issuing signed opinions.
164. James Markham, Note, Against Individually Signed Opinions, 56 DUKE L.J. 923, 944-51 (2006).
165. Cf. Frederick Schauer, Abandoning the Guidance Function: Morse v. Frederick, 2007 SUP. CT. REV. 205 (suggesting that the modern Justices' manifest interest in their individual reputations may help explain their frequent failure to perform the judicial role of providing clear guidance for the lower courts).
166. For a different view, which approves of the Court acting as a "republican schoolmaster" that uses "memorable phrases" to lead the people to a deeper understanding of constitutional commitments, see Mark Tushnet, Style and the Supreme Court's Educational Role in Government, 11 CONST. COMMENT. 215, 215, 223 (1994). We suspect that this may help explain Professor Tushnet's "strong intuition" that adoption of our proposals would "diminish[ ] the average quality of the pool" from which Supreme Court Justices are drawn.
167. Tushnet, supra note 9, at 1302. We may not share Professor Tushnet's assumptions about what makes for a high-quality Justice, but we agree that our proposals would probably result in a Court populated with fewer "republican schoolmasters."
168. Cf. Allison Orr Larsen, Perpetual Dissents, 15 GEO. MASON L. REV. 447, 469 (2008) (arguing that when "a Justice rejects a controlling precedent merely because he dissented from the original decision ... he is elevating his individual jurisprudence (and perhaps individual legacy?) and denigrating the need for consistency or at least coherence in the Court's doctrine").
169. Constitutional objections to the proposals made in this Article would presumably arise, if at all, under a separation-of-powers rubric. Given the many well-accepted ways in which Congress constrains the judicial power, such as dictating rules of judicial procedure and evidence, we think it would be very difficult to construct a persuasive argument that any of our proposals are unconstitutional. We are aware, of course, that some kind of constitutional argument can be made against just about anything.
170. Lots of people, for example, think they know who was primarily responsible for the per curiam opinion in Bush v. Gore. See, e.g., DAVID A. KAPLAN, THE ACCIDENTAL PRESIDENT 274 (2001);
171. Jeffrey Rosen, In Lieu of Manners, N. Y. TIMES MAG., Feb. 4, 2001, at 46.
172. The author, however, has not claimed credit for it and is not widely assigned responsibility for it in public. Perhaps it is no coincidence that the Bush v. Gore per curiam is not as grandiloquent as one might have expected a signed opinion in such a case to be.
173. In light of the analysis we have provided, we do not think that Professor Tushnet's comments demonstrate that the problem is "more difficult than Professors Lerner and Lund imagine." Tushnet, supra note 9, at 1306.
174. See Neal Devins, Should the Supreme Court Fear Congress?, 90 MINN. L. REV. 1337, 1346 (2006).
175. For a spectacular recent example, see Boumediene v. Bush, 128 S. Ct. 2229, 2275-77 (2008) (holding that Congress had provided an inadequate habeas corpus substitute to aliens detained at Guantanamo Bay, and remanding without saying what an adequate substitute would be or what rights a habeas court should enforce). A district judge responsible for coordinating more than 200 detainee habeas cases subsequently complained: "It is unfortunate, in my view, that the Legislative Branch of our government, and the Executive Branch have not moved more strongly to provide uniform, clear rules and laws for handling these cases."
176. Transcript of Hearing at 6, Anam v. Obama, No. CA 04-1194 (D.D.C. Dec. 14, 2009), available at http:// www.scotusblog.com/wp/wp-content/uploads/2009/ 12/Hogan-transcript-12-14-09.pdf.
177. The irony, of course, is that Congress and the President had enacted an exceedingly clear law governing the judicial treatment of such cases. That was the very law struck down in Boumediene.
178. See Boumediene, 128 S. Ct. at 2240-41.
179. It may be unfortunate, but it should be no surprise that Congress has not chosen to make another guess about what rules the Supreme Court will find acceptable. This is not to say that the lower courts are always at a loss when the Supreme Court issues puzzling opinions. For a conscientious and carefully reasoned effort to apply the Court's rather less well-reasoned pronouncements about the Second Amendment, see Judge Diane Sykes's opinion in United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), vacated and reh'g en banc granted 2010 WL 1267262.
180. For a discussion of the shortcomings in the Supreme Court jurisprudence Judge Sykes was required to interpret, see Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343 (2009).
181. See, e.g., Nathan Glazer, Towards an Imperial Judiciary?, 41 PUB. INT. 104 (1975).
182. See Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 MICH. L. REV. 1319,1327-30 (1977).
183. Hellman, supra note 54, at 429;
184. Israel, supra note 138, at 1323.
185. See Hellman, supra note 46, at 1731 tbl.3;
186. Hellman, supra note 54, at 403.
187. Paul A. Freund, Why We Need the National Court of Appeals, 59 A.B.A. J. 247, 247 (1973).
188. Id. at 250;
189. Erwin N. Griswold, Rationing Justice-The Supreme Court's Caseload and What the Court Does Not Do, 60 CORNELL L. REV. 335, 349-53 (1975).
190. COMM'N ON REVISION OF THE FED. COURT APPELLATE SYS., STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE, reprinted in 67 F.R.D. 195, 199-247 (1975).
191. William J. Brennan, Jr., Some Thoughts on the Supreme Court's Workload, 66 JUDICATURE 230 (1983) (address given to the Third Circuit Judicial Conference, Sept. 9, 1982).
192. The dual nature of the criticism common at that time is noted in Margaret Meriwether Cordray & Richard Cordray, The Supreme Court's Plenary Docket, 58 WASH. & LEE L. REV. 737, 737 (2001).
193. See, e.g., Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the
194. Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1136 (1987) (arguing in favor of "[f]ive panels of seven judges each in a new judicial tier").
195. See Sternberg, supra note 61, at 5.
196. From 1971 through 1988, the Court averaged 147 cases per Term. Hellman, supra note 54, at 403.
197. In 1989, the Court heard 132 cases;
198. in 1990, it heard 116 cases; by 1996, it heard 77 cases.
199. Id.
200. See Cordray & Cordray, supra note 145, at 743;
201. Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft, 90 MINN. L. REV. 1363, 1368 (2006) (noting that in the last year of the Rehnquist Court, 74 signed opinions were filed);
202. 2006 Term Opinions of the Court, http://www.supremecourt.gov/opinions/ slipopinions.aspx?Term=06 (last visited July 8, 2010) (75 opinions from the 2006 Term);
203. 2007 Term Opinions of the Court, http://www.supremecourt.gov/opinions/ slipopinions.aspx?Term=07 (last visited July 8, 2010) (73 opinions from the 2007 Term);
204. 2008 Term Opinions of the Court, http://www.supremecourt.gov/opinions/ slipopinions.aspx?Term=08 (last visited July 8, 2010) (83 reported opinions from the 2008 Term);
205. 2009 Term Opinions of the Court, http://www.supremecourt.gov/opinions/ slipopi-nions.aspx (last visited July 8, 2010) (92 opinions from the 2009 Term). These statistics include some cases that were dismissed or remanded without having been considered on the merits.
206. See, e.g., Joan Biskupic, A Different Sort of Court Awaits Blackmun Successor: Recent Terms Marked by Aversion to Change, WASH. POST, Apr. 17, 1994, at A1.
207. Cordray & Cordray, supra note 145, at 738.
208. Hellman, supra note 54, at 429-32.
209. Id. at 429.
210. Id.
211. see also David R. Stras, The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation, 27 CONST. COMMENT, (forthcoming 2010), available at http://ssrn.com/abstract-1476537 (finding that every Justice appointed between 1986 and 1993 was less likely to grant plenary review than his predecessor).
212. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989).
213. Id at 1177-78.
214. Id at 1178-79.
215. Id. at 1186.
216. Hellman, supra note 54, at 432.
217. Id. at 433;
218. see also Schauer, supra note 130, at 206-07 ("Although the Court's guidance obligations have been increasing, its willingness to take on these obligations has been heading in the opposite direction .... [T]here is a growing tendency on the part of the Court to avoid issuing a clear, general, and subsequently usable statement of the Court's reasoning or the Court's view of the implications of its decision.").
219. 28 U.S.C. § 1251 (2006) concerns the Court's original jurisdiction, which is now generally limited to cases between two states. 28 U.S.C. § 1253 involves direct appeals from threejudge district courts.
220. Cases in the courts of appeals may be reviewed by the Supreme Court "[b]y writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." 28 U.S.C. § 1254(1).
221. Id. § 1254(2).
222. See Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law, 88 CORNELL L. REV. 1672, 1706 (2003).
223. Professor Hellman has devoted several informative articles to the question of circuit splits. See, e.g., Arthur D. Hellman, By Precedent Unbound- The Nature and Extent of Unresolved Intercircuit Conflicts, 56 U. Prrr. L. REV. 693 (1995);
224. Arthur D. Hellman, Light on a Darkling Plain: Intercircuit Conflicts in the Perspective of Time and Experience, 1998 SUP. Cr. REV. 247.
225. He has concluded that many circuit splits are not disruptive of the legal system, a view seconded in Amanda Frost, Overvaluing Uniformity, 94 VA. L. REV. 1567 (2008). We take no position in this debate. Our point is that forcing the Supreme Court to hear more of the cases, however mundane, that are truly vexing the legal system will narrow the chasm separating it from the so-called inferior courts. If it promotes other values as well, such as predictability and consistency in the law across circuits, that would simply be a bonus.
226. See, e.g., Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes, 51 ARIZ. L. REV. 933, 980 (2009) (arguing that tribal petitions "often involving the interpretation of Indian treaties or complicated and narrow common law questions of federal Indian law, are readily deemed 'factbound' and 'splitless"').
227. We would remove the constraint on granting certiorari petitions in any year in which the Court accepted all the cases certified from the courts of appeals. Our proposal is more modest than the one advanced in Paul D. Carrington & Roger C. Cramton, Judicial Independence In Excess: Reviving the Judicial Duty of the Supreme Court, 94 CORNELL L. REV. 587 (2009). Carrington and Cramton propose the formation of a "Certiorari Division," consisting of thirteen Article III judges, which would be empowered to identify as many as 120 cases that the Supreme Court would be obliged to hear. Id at 632-33. This step would be fairly radical, and it would require the creation of a new institution out of whole cloth. Our proposal simply breathes life into an already existing process (the codified court of appeals certification provision) that has fallen into desuetude, and it would not significantly diminish the Supreme Court's power to supervise the inferior courts.
228. Starr, supra note 150, at 1376. A pair of recent academic books has comprehensively analyzed the subject. TODD C. PEPPERS, COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERKS (2006);
229. WARD & WEIDEN, supra note 62.
230. For some evidence that clerks influence the decisions of Justices on the merits of cases, see Todd C. Peppers & Christopher Zorn, Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 DEPAUL L. REV. 51 (2008).
231. PEPPERS, supra note 169, at 41.
232. Id at 43-44;
233. WARD & WEIDEN, supra note 62, at 24.
234. See PEPPERS, supra note 169, at 55;
235. WARD & WEIDEN, supra note 62, at 30-31.
236. See PEPPERS, supra note 169, at 61-62;
237. WARD & WEIDEN, supra note 62, at 33, 35.
238. DEAN ACHESON, MORNING AND NOON 58 (1965).
239. See generally PEPPERS, supra note 169, at 83-144.
240. See WARD & WEIDEN, supra note 62, at 36-37.
241. See generally PEPPERS, supra note 169, at 84-144;
242. WARD & WEIDEN, supra note 62, at 36-44.
243. PEPPERS, supra note 169, at 104. Justice Frankfurter would lobby Reed clerks directly. Writes one Reed clerk: "[Justice Frankfurter was] quite fond of using Justice Reed's law clerks as an avenue to the justice's opinions... Frankfurter was quite likely to walk into our chambers... and discuss issues with us that he never talked to the justice about."
244. Id. at 101 (emphasis added) (internal quotation marks and citation omitted).
245. See id at 134 (concluding that with Chief Justice Vinson, who was the first to add a third law clerk, "delegation of all major aspects of a justice's job duties-the review of cert, petitions and drafting of cert, memoranda, the preparation for oral argument via bench memoranda, and the drafting of opinions-became routine").
246. Id. at 151-52. Professor Tushnet reports that Justice Marshall did not ask for bench memoranda. See Tushnet, supra at 9, at 1301 n.2. As he clerked for Justice Marshall, he may possess inside knowledge, at least for that one Term. Todd Peppers, who interviewed dozens of clerks over many Terms, concluded that the seven Justices appointed after Warren, "save Harlan and perhaps Stewart," requested bench memoranda. See PEPPERS, supra note 169, at 152. In any event, Peppers's (and our) broader point, which is uncontested, is that these seven Justices assigned considerably more substantive tasks to their clerks than most of their predecessors.
247. See Id. (all seven Justices appointed after Warren "routinely assigned their clerks responsibility for drafting opinions").
248. See WARD & WEIDEN, supra note 62, at 136 tbl.3.2.
249. Id. at 138 tbl.3.3.
250. PEPPERS, supra note 169, at 159-61;
251. WARD & WEIDEN, supra note 62, at 202.
252. PEPPERS, supra note 169, at 185 (quotation and citation omitted).
253. Id.
254. Id. at 186 (internal quotation marks and citation omitted).
255. Id at 164 (internal quotation marks and citation omitted).
256. See Starr, supra note 150, at 1377.
257. See Suzanna Sherry, Politics and Judgment, 70 Mo. L. REV. 973, 986 (2005).
258. See Starr, supra note 150, at 1376-77. This effect is somewhat diminished by the role of the Solicitor General of the United States, whose recommendations are always taken very seriously and are frequently actively solicited.
259. See David C. Thompson & Melanie F. Wachtell, An Empirical Analysis of Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 GEO. MASON L. REV. 237 (2009). But reliance on the President's lawyer for guidance in case selection may have its own distorting effects, for obvious reasons.
260. The institution of the judicial clerkship may also have developed in a manner that promotes politically based approaches to the law. See William E. Nelson, Harvey Rishikof, I. Scott Messinger & Michael Jo, The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation?, 62 VAND. L. REV. 1749 (2009).
261. Citing "chatter among Supreme Court watchers" and brief passages from a journalistic book, Professor Tushnet speculates that inter-Justice deliberations have increased recently. See Tushnet, supra note 9, at 1300 n.2. The extent of the change, if any, is unknown, and the durability of any change that may have occurred is unknowable. See supra note 76.
262. See PEPPERS, supra note 169, at 189 (quoting J. Harvie Wilkinson III as saying, "I never felt that I was just a Supreme Court clerk-I always saw myself as a Powell clerk").
263. Currently, most Justices participate in a "cert pool" arrangement, in which every petition for certiorari is randomly assigned to one
264. Under our proposal, the Librarian's power would, of course, be augmented rather considerably. We are inclined to think that authority over the appointment and removal of the Librarian should be left with the Court, perhaps under an arrangement by which the Chief Justice appoints and removes, subject to a veto by a majority of the Justices.
265. It might be objected that adoption of our proposal would cut off the fresh thinking and familiarity with contemporary life that young people can provide. We disagree. The notion that Supreme Court clerks-chosen from a very narrow pool of lawyers and cocooned with their Justices in a world of extraordinary privilege-are putting the Court in touch with contemporary American life is pretty far-fetched. In any event, there are ample opportunities for advocates and amici to bring new thinking and information to the Court through their briefs.
266. In light of what we say in this paragraph, we do not understand why Professor Tushnet thinks we are asking "how the people now serving on the Court would behave if [our] proposed changes were made." Tushnet, supra note 9, at 1301. He is right, however, that we have not purported to provide a "systematic" analysis predicting how the adoption of our proposals would alter the pool from which Justices are selected.
267. Judiciary Act of 1789, ch. 20, 1 Stat. 73.
268. Id. § 4, 1 Stat, at 74-75.
269. See Act of Mar. 3, 1891 (Evarts Act), ch. 517, 26 Stat. 826.
270. See Act of March 3, 1911, ch. 1, 36 Stat. 1087.
271. Glick, supra note 33, at 1782.
272. Repeal Act, ch. 8, 2 Stat. 132 (1802).
273. Glick, supra note 33, at 1783-85.
274. Frank Otto Gatell, John McKinley, in 1 JUSTICES OF THE UNITED STATES SUPREME COURT 1789-1969, at 773 (L. Friedman & F. Israel eds., 1969). Exhaustion brought on by the demands of circuit riding led, in part, to Justice William Cushing's decision to decline the commission to be Chief Justice.
275. See Ross E. Davies, William Cushing, Chief Justice of the United States, 37 UNIV. TOL. L. REV. 597, 621-22 (2006). One nominee to the Supreme Court declined the honor altogether, noting that circuit riding was "extremely difficult [and] burthensome [sic]" and could result in the "loss of [his] health."
276. See David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 MINN. L. REV. 1710, 1718 (2007) (alteration in original) (internal quotation marks and citation omitted).
277. See Glick, supra note 33, at 1806;
278. White, supra note 26, at 8 & n.24. Circuit riding could be downright dangerous. While circuit riding in California, Justice Field was assaulted by a defendant in a case he had decided. A deputy travelling with Justice Field shot and killed the assailant. Field and the deputy were then charged with murder. Charges against Field were dropped, but only the intervention of a federal court prevented the deputy from being tried in state court. In re Neagle, 39 F. 833 (C.C.N.D. Cal. 1889). The remarkable story is told in Glick, supra note 33, at 1823.
279. See Charles G. Geyh, Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts, 78 IND. L.J. 153, 182, 185-88 (2003) (recounting the circuit-riding debate during Reconstruction);
280. Glick, supra note 33, at 1799-1801, 1808-10, 1820-21.
281. CONG. GLOBE, 41st Cong., 1st Sess. 209 (1869) (statement of Sen. Williams).
282. Summary of Events, 1 AM. L. REV. 206, 207 (1866).
283. See Margaret Meriwether Cordray & Richard Cordray, The Calendar of the Justices: How the Supreme Court's Timing Affects Its Decisionmaking, 36 ARIZ. ST. L.J. 183, 192 (2004).
284. Act of Mar. 3, 1891 (Evarts Act), ch. 517, 26 Stat. 826.
285. Charge to Grand Jury, 30 F. Cas. 998 (C.C.D. Md. 1836) (No. 18, 257) (Taney, C.J.).
286. See Glick, supra note 33, at 1811 (cataloging the circuit-riding travails of Justice Daniels).
287. See Alabama's Forgotten Justices: John McKinley and John A. Campbell, 63 ALA. LAWYER 236, 237-38 (2002) (discussing a string of cases decided by Justice McKinley while riding circuit, all of which were subsequently reversed by the United States Supreme Court in Bank of Augusta v. Earle, 38 U.S. 519 (1839)).
288. Ex parte Simmons, 22 F. Cas. 151 (C.C.E.D. Pa. 1823) (No. 12, 863) (Associate Justice Bushrod Washington, presiding in the Pennsylvania Circuit Court).
289. We made this suggestion in Lund & Lerner, supra note 129. Others have recently offered variants of the proposal as well. See Steven G. Calabresi & David C. Presser, Reintroducing Circuit Riding: A Timely Proposal, 90 MINN. L. REV. 1386, 1388-89 (2006);
290. Stras, supra note 206, at 1712. Both articles, like this one, draw upon the impressive research compiled in a student note. Glick, supra note 33.
291. Professor Tushnet is right that modern communications would enable circuit-riding Justices to carry out some of their duties without leaving their plush Washington, D.C., offices. See Tushnet, supra note 9, at 1302 n.8. Given the relative modesty of the tasks expected of the Justices under our proposal, it would be all the more remarkable if the Court were to overturn Stuart v. Laird and hold circuit riding unconstitutional.
292. See Stuart v. Laird, 5 U.S. (1 Cranch) 299, 305 (1803).