U.S. Supreme Court

Law Profs Propose Cure for Supreme Court ‘Cult of Celebrity’

Two law professors say the “cult of celebrity” surrounding U.S. Supreme Court justices could be eliminated with a statute that requires their opinions to be anonymous.

The professors, Craig Lerner and Nelson Lund of George Mason University School of Law, say their proposal is aimed at “unnecessary and unhealthy flamboyance” in judicial opinions. In a paper to be published in the George Washington Law Review, they say the change 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.”

The Opinionator blog of the New York Times calls the proposal a “useful thought experiment” but deems it “completely out of the question, of course.” Yet the Opinionator notes that dissenting opinions are rare and unsigned in other courts, and they are banned entirely by the constitutional courts of France, Italy and Austria, as well as the European Court of Justice.

Other ideas espoused by the law professors:

• Supreme Court justices should be required to hear at least one case certified from a circuit court for every federal question case they choose from their discretionary docket. This would result in more opinions important to the legal system, while leaving the justices free to decide all the cases they like “on such stimulating topics as nude dancing, flag burning, sodomy and abortion,” they write.

• Law clerks shouldn’t be allowed to draft judicial opinions, and they should be moved to the office of the court’s librarian where they would do research for the court rather than individual justices.

• Justices should be required to serve part of their time as circuit-riding judges on the lower courts.

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