October 16, 2009

Lawprof Mark Tushnet "wants [the Supreme Court] to be slackers."

He's referring to the current Supreme Court, which he doesn't like, so he's happy with them cranking out fewer cases. The ideal number would be 0, he snarks, here at the judicial review symposium.  It's the last panel of the day.

Lawprof Nelson Lund has just spoken, condemning the "cult of celebrity judges." Is there a cult of celebrity judges? If so, is it a bad thing? Anyway, Lund has a bunch of proposals designed to destroy the cult. Make the job of being a Supreme Court Justice more onerous and less nourishing of narcissism, and maybe the Justices will become dourly dutiful little scribes.

One proposal is to end the practice of signing opinions. Do you think if the Justices couldn't stamp their names on the opinions, their behavior would change? And would unsigned opinions even hide who the author really was?

Prof. Tushnet says:
"You're going to have to figure out how to keep Justice Ginsburg from using the word 'pathbreaking,' and you're going to have to keep Justice Scalia... well, from being Justice Scalia."
Ha ha. It would give us lawprofs a new game to play, figuring out the distinctive marks of the different judges. For a while, at least. Over time, I think, we'd stop caring who was who. The Court would fade into a black box from which opinions emerged, and we'd judge the opinions on their merit, without bothering to imagine what's going on in the minds of particular judges. Would that make law more law-like, or would it just hide things that we ought to want to know?

61 comments:

John Lynch said...

Why take away what little accountability there is? If nothing else, history knows who to blame for bad opinions.

EDH said...

One tip-off as to who wrote the opinion would be the little hearts Scalia uses to dot his i's.

Eric said...

I don't like the idea of unsigned opinions. The Madame Defarges everywhere need to know who to include in the knitting.

rhhardin said...

Justices should have a choice of screen name or real name.

Dogwood said...

Justices should have a choice of screen name or real name.

Do we get to pick their avatars?

Scott M said...

Both.

Kirk Parker said...

"It would give us lawprofs a new game to play, figuring out the distinctive marks of the different judges."

This sounds like the Kremlin watchers from the bad/good old days of the cold war.

Geoff Matthews said...

Tushnet:

DON'T LOOK AT THEM!! LOOK AT ME!!

Bruce Hayden said...

It would be interesting. Some of the Justices have fairly unique styles. I don't think that either Scalia or Thomas would be hard to pick out, and not being a Con Law prof, I don't read their cases for a living. O'Connor was somewhat obvious with her 15 part balancing tests, but she has gone back to Arizona, being replaced by a Justice we don't know as well.

But, I just don't think we will see this come to pass. Justices have been authoring opinions for ever. And how could we endure law school without knowing that it was Holmes who talked about shouting fire in a crowded theater, or thought that three generations of imbeciles was enough. Or, that John Marshall, acting Secretary of State under President Adams, wrote Marbury v. Madison, and that the controversy revolved around commissions that he had delivered to his successor as Secretary of State, Madison, under newly elected President Jefferson.

EDH said...

Geoff Matthews said...

Tushnet:

DON'T LOOK AT THE FAT ASS LOSERS AND FREAKS!! LOOK AT ME!!

Alex said...

So some left-wing bozo doesn't like the conservatives on the SCOTUS. What's new here?

Bender said...

If one looks at the entire history of the Court, it is fairly obvious that, more often than not, it has been a hinderance and obstruction to law and freedom, rather than a protector of these things.

Much of the responsibility for the Civil War, with its 600,000 dead, can be laid directly at the feet of the Court because of Dred Scott.

Then we have Plessy and a bunch of decisions upholding Jim Crow. Then comes gems like Buck v. Bell, which only an Adolf Hitler could appreciate. Then, of course, comes Wickard v. Filburn and the rest of the modern government takeover of economic society. And let's not leave out Roe and its "progeny," which ensured the destruction of progeny. More recently, we have jewels like Kelo, where your property is the government's, and the recent suicide pact terrorist cases.

America may very well be a safer and freer place if the Supreme Court were to reduce it's caseload to zero.

traditionalguy said...

"Pathbreaking" is not a good job description for a Justice who is supposed to find the beaten path and keep descisions on that path. But it is a great job description for an anointed Constitution re-writer. Let the Convention begin among the Fab Five Pathbreakers. We can name them John, Paul, Ringo, George and Swing Voter.

Eric said...

If one looks at the entire history of the Court, it is fairly obvious that, more often than not, it has been a hinderance and obstruction to law and freedom, rather than a protector of these things.

I don't think that's a fair characterization of the institution. Much of the loopyness you'd otherwise get from Congress dies in committee because they know it would never pass muster in the courts.

Alex said...

Every time a 2nd amendment case comes to the SCOTUS and they re-affirm it, I know why I voted for Dubya.

Ralph L said...

Much of the responsibility for the Civil War, with its 600,000 dead, can be laid directly at the feet of the Court because of Dred Scott
OTOH, without Dred Scott (or the election of Lincoln) the War might have occurred ten or twenty years later with 2 million dead.

would it just hide things that we ought to want to know?
As in "know your enemy." I'd think differentiating justices would be crucial for those who argue before them. How would they know when a particular idiotic decision-writer had retired?

Bender said...

No, that's the same hand. And one would have a very difficult time convincing anyone that it was ultimately a good thing, because it prevented worse things, that the Court should rule that blacks were "so far inferior that they had no rights which the white man was bound to respect."

On the real other hand, without Dred Scott, the nation could have come to a peaceful and democratic decision to end slavery, which was by then beginning to be understood as no longer being economically feasible. (Just as we would not have had the abortion civil war without Roe.)

Lem said...

The supremes used to be mostly thought of as the 3rd branch in nomen oblitum..

Now that we have super politicized their appointments there is no telling how high their balloon can go w/o anybody in it.

Alex said...

Lem - do you have any evidence that the super politicization of SCOTUS is a recent thing? What about FDR's attempt to stack the court? Come on man, politics has been nasty in Americas since 1788.

Cedarford said...

I am in general agreement with Bender.In that unlimited terms of office for life and ability to legislate out of thin air - and be unaccountable to anyone via lawyer-contrived "lifetime tenure" and "judicial review over and above the ability of the People and States and other two Branches to limit it" - not only gives celebrity Godhood to certain judges - but shows those judges have gravely damaged America in many areas, given their historical record.

You know have multimillion dollar lobbyists who would pay nothing less than a fortune for Judge Scalia's stool sample or Ginsburg's bloodwork..to say nothing for a 300K symposium orchestrated so to give attorneys some access to the celebrity God that is Anthony Kennedy...or the Wise Latina.

To fix this, you need to fix the Constitution, and that requires America to continue to fail and deteriorate..as it now is..before fixes are rendered on unaccountable judges, an incomprehensible tax code, loss of voter control of our government to puppeteers in NYC finance, the Ruling Elites - Beijing, Riyahd and Tel Aviv .

It's not too early to begin thinking...before Constitutional flaws and personality-driven judiciary now operating in a Talmudic fashion totally alien to the Founder's concept of legal philosophy --set us up again for another Civil War...what of the "Sacred Parchment" needs to be fixed?

Ralph L said...

a peaceful and democratic decision to end slavery
Fat chance. Aside from the immense capital in millions of slaves, after Nat Turner and John Brown, what could or would the South have agreed to do with the freed slaves? A century of Super Jim Crow? Deportation to Liberia and the South Bronx?

Lem said...

there is nothing i've read in the history of the US that compares to the "advise and consent" Bork hearings.

to this day if you dare go back and watch there are things that would still make you wince.

take the idea that 'i'm voting against you because you are over qualified'.

WTF!

Alex said...

Lem - really? I didn't have to work too hard to find these early gems:

http://en.wikipedia.org/wiki/John_Adams#Midnight_Judges

http://en.wikipedia.org/wiki/Alien_Sedition_Act

All thanks to John Adams, one of our "holy founding fathers". You really should read more history.

Alex said...

Or how about good old George Washington, that fount of freedom:

http://en.wikipedia.org/wiki/Whiskey_Rebellion

Alex said...

Or the esteemed Thomas Jefferson:

http://en.wikipedia.org/wiki/Presidency_of_Thomas_Jefferson#Judiciary

Jefferson urged Congressional leaders to begin impeachment hearings. Many Republicans felt that this accusation of sedition was too reminiscent of the Federalist Sedition Act that had been repealed early in Jefferson's presidency. Unwilling to remove a Supreme Court justice on purely political accusations, the Senate acquitted Chase of all charges in 1804. The case of Samuel Chase has been the only impeachment trial of a Supreme Court justice in United States history. By rebelling against Jefferson's wishes, the Republican Senators sent a message that the independence of the judiciary was not open to political manipulation.

Ralph L said...

puppeteers in NYC finance
Remarkable restraint. You didn't just say GOLDMAN SACHS.

Perhaps someone (Mussolini?) could induce the SCOTUS to allow term limits on Congress and Congress to vote term limits on SCOTUS.

WV - menmedle - we certainly do, especially for money or sex

Joe said...

With unsigned opinions, I suspect there would be more mischief. You'd see really weird shit show up in neutral language with everyone having plausible deniability.

For the record, I believe terms ALL judges should be limited to 20 years in any particular court. I'd also like an age or senility cap--a cap on really shitty decisions would be nice, but how to measure that? (The Monty Python 16-ton weight would also serve the purpose.)

Bender said...

Towards the end, a fair number of states in the "Confederacy" were contemplating that very thing -- democratic abolition of slavery.

Lem said...

As always the local historians seek to "tapar el sol con un dedo".

they hide from the truth as though it were family.

wv - sesturo - a saying leading to death.

Pogo said...

I have less and less respect for The Law over time.

Increasingly it is being used for political purposes, and given the Criminalization of Everything, everyone is guilty of something, and only prosecutorial discretion prevents one's ruin.

It's kafkaesque, and nothing to be lauded. And now the same thing will be visited on medicine, first via politicization of expenditures according to Democratic support.

Should justices sign opinions? Not sign?
That's a deck-chair-moving question, in view of the disaster that is The Law.

Lem said...

yes the senator that voted against Bork, even though Bork had been the "most qualified applicant he ever faced" was the party switching senator from PA.

maybe there is something to what a democrat congressman from PA has said about his own democrats "you have to understand they are slow".

Big Mike said...

It would give us lawprofs a new game to play, figuring out the distinctive marks of the different judges.

You guys sound like you're hurting for amusement.

Lem said...

an then again are the allegiances that are realigned by baseball.

I'm rooting for he phillies.

I have nothing against Pennsylvania.. just because they vote lousy people into office.

I did like their governor, whom the democrats (of their own party) in fear of his pro-choice stand decided to disinvite him to their party convention.

Governor Casey was a decent Americen!

Lem said...

if you can show me a playoff contender state with a stronger pro-life stand than PA.. I will root for them to win the world series.

its that easy and yet that hard //...

hahahha hhhaa

rhhardin said...

It's kafkaesque, and nothing to be lauded.

Thomas Mann rated Kafka as a "religious humorist."

Lem said...

The Lem pro life challenge is in effect!

Atrevete a desafiarme!

I'm betting for the world cahmps!

who are you rooting for?

Lem said...

I know it might be crazy to base the world series on such a clumsy thing..

people have bet grater game on less.

Lem said...

the story goes.. (yes unconfirmed there were only the two paries that relied it) that at a cock fight in Santiago DR my grand father tells his friend in the middle of a bet i have to pee, i have to go, and his friend fearing my grandfathers prowess to pull a fraud sais me too i got to go..

so my grand dad says ok.. ill' tell you waht lets work something out..

whoever can shoot a piss the longest wins the fight.. the cock fight.. you go first

his friend, drunker than a scunk shoots and it sprinkles his and my grandpas shoes with piss.

my grand father shoots his load as far a he can while holding his member like a fire hose..

his friends says you cheated.. you are holding it!

my grandfathers says "where was ever that I could not hold my dick in the rules"?

thats how we play 99% law today!

Charlie K. said...

Wow. Is this the kind of bland, banal commentary you provided at the conference? Or did you save these lame observations for us?

Lem said...

I talked to a lawyer friend i slept with and she says .. if you dont have a 'stuatutory claim' .. (discrimination amongst other inflammatory things..) you don't have a claim.

yes but wath if i told you they are only mailing me (there was not even time to write it in person) a check of 4 weeks severance..

i worked for them 24 years. and i'm only worth 4 weeks?

"you are talking about a jury Lem"

as if it might as well be fantasy land.

the law is fantasy land to those who abide by it and to those who make a living braking it.

Lem said...

when people found out the truth within a matter of minutes that that woman in the news had no won the lottery as she had claimed. they held a mini riot.

and you work for somebody for 24 years and they tell you (on your birthday) we dont need you anymore.

Eric said...

Fat chance. Aside from the immense capital in millions of slaves, after Nat Turner and John Brown, what could or would the South have agreed to do with the freed slaves? A century of Super Jim Crow? Deportation to Liberia and the South Bronx?

Slavery was abolished virtually everywhere else in the world through a peaceful transition, and slaves outside the US were also worth a whole lot of money to their respective owners. The thing that's notable about the civil war wasn't that slaves were freed but rather a war was fought over the issue.

The whole thing was a monumental failure on the part of the country's political class.

Lem said...

what is law insulated in lifetime appointment and tenure?

Lem said...

someone in distress is never a true observant of anything.

Lem said...

its offisial

my mother says i should sue and my sreptmother says i should sue.

they have never been right about anything concerning mys best interest.

Lem said...

I told my fried lawyer.

"if i have to make something up i'm not suing anybody."

..its not like i'm getting divorced.

Michael Hasenstab said...

"Tushnet" sounds like a booty-centic website.

Michael Hasenstab said...
This comment has been removed by the author.
Lem said...

I've seen divorce papers in the privacy of that friend lawyer i'm telling you about ..

most "causes" are made up!

confidentiality prevents me from divulging the intricate details but suffice it to say some people get divorce for no reason at all!

Lem said...

the easy ones are the quik ones negociated via the Dominican Rep. were we are from.

it's all like a movie mob scene.

over b4 anybody finds out.

Lem said...

My father (un ministro) prides that he can get a divorce b4 the evening of the day it's conceived.

He gets a premium for that!

His piety helps, an the fat that i should have followed him i would not be unemployeds now..

my father is the antichrist.

Ralph L said...

Lem said...
I told my fried lawyer.
I prefer them grilled.

Lem said...

i wish i was making it up..

My father "ministered" some people (there were some Dominicans among them) up in Lawrence, Peabody, Lynn, Mass. (thats when i though i gold be a red sox, i was busy)

there was a rash of people with back problems suing and suing companies in the 80s. up north

we started calling them "espalda de vidrio" - glass backs".

people see loopholes in a system and they are quick to exploit it.

my father tells me "if the government runs it it's only going to get more predatory". its only going to get more phony.

Lem said...

everything that I have see in my lifetime while I was helping dad save souls tells me the gov is really not good looking after people.

and because of they are not good we are going to give them more responsibility.

maybe because they have MORE responsibility they are going to do better.

why not?

former law student said...

to this day if you dare go back and watch there are things that would still make you wince.

take the idea that 'i'm voting against [Bork] because you are over qualified'.

Bork had two strikes against him.

First, he was a law professor, an academic's academic. You want your Supreme Court Justices to be a little pragmatic. Although it might have been a hoot to put him on with, say, Laurence Tribe for balance.

Second, he let Nixon use him. Two Attorney Generals resigned rather than fire Special Prosecutor Archibald Cox. Bork took a bullet for Nixon.

former law student said...

its offisial

my mother says i should sue and my sreptmother says i should sue.

Sue for what? Generally employment is "at-will": you can quit or they can fire you at any time.

Was it a layoff or were you fired for cause? If it was a layoff, were you discriminated against? Compare the age and gender distribution of the workforce to that of the laid-off, to see if they're discriminating against older workers.

Check your employee handbook to see if you were terminated according to their policy. Even if you were terminated for cause, handbooks often talk about progressive discipline, warnings, etc. See if they left out a step.

Check these things out, then call an employment lawyer. But remember, if they've decided they no longer want you there, is staying there really in your best interests?

Penny said...

The age discrimination act was passed in 1967 and covers those 40 and over. That's just around the time that hippies decided no one over 30 could be trusted, so I suppose 40 seemed old as the hills back then.

Penny said...

Course if we give Congress enough time, and aging boomers yell loud enough, they will pass another law that doubly protects those over 50 and triply if over 60.

They already did something similar with their hate crime legislation. There's murder and then there's WORSE murder.

reader_iam said...

Is there a cult of celebrity judges?

No.

Penny said...

"Lawprof Mark Tushnet "wants [the Supreme Court] to be slackers.""

Why stop with the Supreme Court?

There should be a law against making more laws! Wouldn't THAT be ironic?

But we citizens can't sell this very well as the "Slacker Movement" of 2009. We need to somehow package it positively to encourage the change.

Hm?

Bruce Hayden said...

Course if we give Congress enough time, and aging boomers yell loud enough, they will pass another law that doubly protects those over 50 and triply if over 60.

Why stop at triple. And, the solution is just to raise the age of discrimination, since 40 year olds are part of the Baby Bust now, and 50 or 60 is the new 40.

There are a lot of things bad about getting older, but I am looking forward to all the bennies I will soon be eligible for. Discounts for pretty much everything. Social Security (except it will be better than a decade before I can get SS and still work). And, awhile back, I would have included Medicare. Not any more, as they have recently implemented health care rationing, and reimbursement rates are already low enough that some doctors are refusing to take new Medicare patients. Oh, and an extra exemption on my income tax returns. All sorts of nice benefits.