Law profs Nelson Lund and Craig Lerner have four ideas for how Congress could reform the Supreme Court:
Take away their law clerks. Each justice now has a personal staff of several top law-school graduates who serve for one year. These intelligent, energetic, and intensely ambitious young people are itching to do the hard work of studying precedents and writing opinions. It should be no surprise that modern justices have frequently assumed the more pleasant role of dictating big thoughts and deep feelings to the clerks, and editing the drafts they write. ruly old-fashioned judges would study the precedents themselves, discuss the law with their colleagues instead of with their handpicked votaries, and write their own opinions. The Supreme Court once heard hundreds of cases each year, without law clerks to help. Today?s justices should be able to manage the 70 or 80 they consent to decide each term.
Force them to decide common-law cases. The Supreme Court, which today has virtually total discretion to choose which cases to hear, once had little or no choice at all. Using the freedom Congress has granted them, the justices focus on the most interesting constitutional and statutory issues arising from ?federal question? jurisdiction. Missing are the kind of common-law contract and tort cases that come under ?diversity? jurisdiction ? that is, disputes involving issues of state law between parties from different states. There are plenty of diversity cases in the lower federal courts, but the Supreme Court almost never agrees to hear one.
We propose to leave the justices free to decide how many cases to hear, and which ones. But Congress should require them to hear at least one diversity case for every federal question case they accept for review. Still free to take all the cases they like on such stimulating topics as nude dancing, flag burning, and abortion, they should have energy left to decide an equal number of cases dealing with such matters as the common law of negligence and breach of contract.
Bring back circuit riding. Through the late nineteenth century, Congress required Supreme Court justices to serve part of their time on lower federal courts, ?riding circuit? around the country. Restoring this practice would expose the justices to the problems created by muddled Supreme Court decisions, and it would give them something healthier to do in the summer than hobnob with cosmopolites in Salzburg.
Eliminate signed opinions. Standard practice now is for judicial opinions to be signed by the justice who wrote the opinion (or hired the clerk who wrote it). Occasionally, the justices revert to an older practice of issuing opinions per curiam, or ?by the court.? Truly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to a lot of muddiness in the Court?s work. We propose that Congress require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. If the justices could be shamed into complying in good faith, we would see fewer self- indulgent separate opinions, less flamboyant majority opinions, and more reason for future justices to treat the resulting precedents respectfully.
Do go read the whole thing.
