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Wednesday, July 31, 2019

Sherry on the "Kardashian Court"

Suzanna Sherry has a new piece on SSRN, Our Kardashian Court (and How to Fix It). Sherry argues that partisanship can be reduced on SCOTUS by a law prohibiting concurring and dissenting opinions and having the Court issue one per curiam opinion, with no indication of how many Justices joined that opinion. The goal is to eliminate the opportunity for Justices to become celebrities or to push personal agendas.

This is a fascinating idea. I had the privilege of reading and commenting on an earlier draft. Some of my comments are after the jump:

• Sherry brackets whether this should extend to courts of appeals. But note that the concerns for both celebrity (Posner, Kozinski, many of the Fed Soc people that Trump has appointed) and partisanship (especially with the attention given to many of Trump’s appointees) are present on these courts. Dissents on the courts of appeals may help SCOTUS identify which cases to take, which is a positive. Otherwise, they raise the same problems Sherry identifies--celebrity and pushing individual agendas--while adding new ones, such as auditioning for SCOTUS.

• On this point: At SEALS, Donald Campbell (Mississippi College) presented a paper trying to measure how dissents and separate opinions reflect or undermine collegiality on courts of appeals, where there often is a a "norm" that judges write separately only in extraordinary cases. If collegiality is affected by dissents, then Sherry's proposal would be a welcome change for those courts, ensuring and re-enforcing that norm and that collegiality.

• Sherry would impose this by statute, so she spends time considering the separation of powers objections to such a law, concluding the law would be valid. This would be another opportunity to test concepts of judicial independence and what it means for Congress to tell the Court how to decide a case.

• The key weakness to the proposal might be that it is too late. The partisan divide is too sharp and the identities and positions of the individual Justices too well-known. Everyone would know who did and did not join a per curiam opinion overruling Roe/Casey. Had this proposal come in 1973--when Stewart, White, and Powell were the median justices and appointing party did not align with judicial ideology--it might have helped prevent us from getting to where we are now.

As Larry Solum says, download it while it's hot.

Posted by Howard Wasserman on July 31, 2019 at 01:13 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Howard, thanks very much for drawing our attention to this very interesting proposal. Like Prof. Sherry, I think the Court would function better with a single opinion, though I would go further and require a unanimous decision. Neither side should be able to impose its perspective on the country.

And while Prof. Sherry worries about the constitutional implications, I think that there is a strong constitutional argument to be made that unanimity is required by the due process principle of a neutral court. I've written an amicus brief to that effect (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3339343).

Posted by: David Orentlicher | Aug 3, 2019 4:52:53 PM

A partisan divide (or two-party system or multicultural society) isn't supposed to happen.

The elites agree on a set of values, eliminate the dissenters (Great Leap Forward), then transmit their values to the young, who become the next generation of elites who agree on the same set of values. This one-party system is the norm in every other country on earth.

Except in America, there are two sets of values or a multicultural society, i.e., a partisan divide.

How did two sets of values (multiple cultures) appear in the U.S. when it was prevented in the rest of the world?

Posted by: Bite of Chomsky | Aug 1, 2019 7:02:48 PM

Whether it's Europe, Africa, The Middle East, Asia, or Native American Reservations, almost all countries have one culture--everyone agrees on whether or not drugs, guns, abortion, contact sports, homeschooling, violent video games, etc. should be outlawed.

Only in America do people disagree on these issues. Only in America is there multi-cultures, (cultural divides) multiple points of view on social policy.

Why wasn't America able to get a monolithic, homogeneous public opinion on political issues and have a single culture the way every other country has?

Why is there a partisan divide in America that is missing in every other country? Nobody talks about a partisan divide in Russia, Iran, China, Congo, or Brazil.

Posted by: Unfairness Doctrine | Aug 1, 2019 1:19:03 PM

Is there a partisan divide or a cultural divide?

A partisan divide would be disagreeing for the sake of disagreeing and not because you actually oppose them, like stopping your opponents from passing a law so they couldn't point to it to get re-elected, rather than stopping your opponents from passing a law because you think it's a bad idea.

A cultural divide would be genuine disagreements, like how some people honestly do want guns, or violent video games, or driving 45 on city streets, or untaxed OTC Vicodin, or abortion de-criminalized and some people honestly want them outlawed
(or restricted to adults who aren't interested in them or too old to take advantage of them--like legalizing abortion or violent video games to people over 40).

Posted by: Cultural Simulacrum | Aug 1, 2019 1:08:15 PM

*sorry, meant to be "Fox News or MSNBC" -- I was trying to give an example for each side.

Posted by: Orin Kerr | Jul 31, 2019 5:46:33 PM

Interesting, but I'm skeptical. To the extent it is major problem that certain Justices on the Supreme Court are very popular within each side's political base -- something that I am not sure is the case -- I'm not sure that banning separate opinions and not noting vote counts would help solve the problem. The Justices would presumably just take other opportunities to make their views known: They could make political points at oral argument, or in extrajudicial speeches, or by going on CNN or MSNBC and skewering/praising the Court's work. Indeed, those are the fora that tend to lead to the most celebrity status today (think Gorsuch talking to the Federalist Society) . Given that published opinions are just one way to make views and agendas known, I'm skeptical that gibing the public less information in published opinions would keep the information secret.

Posted by: Orin Kerr | Jul 31, 2019 5:45:39 PM

Sorry, that should be "judges are supposed to be doing something different than what law professors are doing."

Posted by: Howard Wasserman | Jul 31, 2019 4:23:37 PM

Ah, Talisman Smith comes in with the ever-popular category mistake.

Posted by: YesterdayIKilledAMammoth | Jul 31, 2019 4:15:00 PM

All academic writing is concurring or dissenting, since no academic writing produces a judgment that resolves a real-world dispute. Actually, many argue that an opinion of any kind, separate from a judgment, is nothing more than a law review essay.

More broadly, judges are supposed to be doing something different than what judges are doing.

Posted by: Howard Wasserman | Jul 31, 2019 2:30:14 PM

Couldn't academic symposiums be thought of as concurring and dissenting opinions on academic articles? If so, could it be wise to prohibit academic symposiums and require academic articles to be written as pro curium opinions for their respective college law departments?

That might prevent professors from trying to become famous by commenting on other people's articles rather than concentrating on their own scholarship?

Posted by: Talisman Smith | Jul 31, 2019 2:23:10 PM

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