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Lund and Lerner on The Supreme Court:

My colleagues Nelson Lund and Crag Lerner have a provocative column "Precedent Bound" with some ideas on how to restore some sense of humility to the members of the Supreme Court. Here's a snippet of the central problem in their mind:

Both liberals and conservative justices write popular books about legal topics, and even about their own lives. Judicial opinions are increasingly filled with such grandiosity as this: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (Planned Parenthood v. Casey). The justices freely let us know when they like or dislike a result that the law dictates, how they would have voted if they were legislators, and where they think Congress could improve the law. And sometimes we're even reminded that if Americans aspire to be a law-abiding people, "their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals" (ibid). Not much humility there.

Perhaps most important, constitutional law is becoming an aggregation of nine idiosyncratic theories and nine bodies of personal precedent. To a degree that would have shocked the Founders, today's justices care more about fidelity to their own individual past pronouncements than about stability and predictability in the decisions of the Court itself. Even if Roberts and Alito sincerely admire the self-effacing virtues of old-time judges, reversing history will require assistance from outside the Court.

They offer several concrete proposals for restoring humility to the Court, several of which may be somewhat tongue-in-cheek.

WB:
I'll post the same thing I posted at Bernstein's...

The piece is here.

This paragraph is particularly provocative:

Perhaps most important, constitutional law is becoming an aggregation of nine idiosyncratic theories and nine bodies of personal precedent. To a degree that would have shocked the Founders, today's justices care more about fidelity to their own individual past pronouncements than about stability and predictability in the decisions of the Court itself.


Every time I read cranky-sounding op-eds calling for cancelling the Justices' vacations and reducing their law clerk staff, I usually detect a hint of jealousy. Pieces calling for more "humility" from the Supreme Court are often written by lawprofs who are particularly lacking in humility themselves.

This, however, seems like it may be onto something if one looks past the rhetorical flourishes. I wonder how much truth there is to the idea that the Supreme Court has "nine bodies of personal precedent." If that's the case then the court starts to sound a bit more legislative than judicial.
3.6.2006 2:12pm
CharleyCarp (mail):
Shocked the Founders? Have the authors ever read any 18th century decisions?
3.7.2006 7:04am