Chief Justice Roberts to his Colleagues: Don’t be English and Don’t be a Law Professor!
If you haven’t read it, take a look at the Atlantic Monthly interview with Chief Justice Roberts. Roberts is concerned about the decline in the legitimacy of the Court and his proposed solution is more unanimous opinions. That, however, means getting justices to subordinate their own sense of philosophical consistency (and their reputations for the same) to the good of the institution. The problem, says Roberts, is that the Justices are all acting like law professors or English judges who insist on seriatim opinions. The point of the robes — and in an earlier age wigs — is, he says, to hammer home the point that it is not people but the law that is deciding cases. The point about professors and Englishmen is interesting.
English judges are an interesting case. First, as a doctrinal matter, the House of Lords prior to a couple of decades ago did not have the power to overturn a previous decision of the House of Lords. It was stare decisis with vengeance. At the same time, essentially any legal decision could be reversed by a simple majority in Parliament. I suspect that both facts pushed towards the seriatim opinion. The inability to reverse decisions created incentives for judges to write confusing seriatim opinions, as it preserved future flexibility via complexity and ambiguity. At the same time, Parliamentary supremacy decreases the demand for institutional legitimacy. After all, the House of Lords doesn’t have to constantly convince the British public that it is entitled to reverse democratic majorities. I also suspect that having the big wigs helps.
So what is so bad about acting like a law professor? Some of the nicest people I know are law professors. There are a couple of reasons that law profs might be bad judges. First, legal realism in its most virulent form is basically an academic phenomena. If you believe that the law really is what the judge had for breakfast, it is hard as a judge to walk the walk, talk the talk, and wig the wig of judicial impartiality in ways that are going to convince the public. Roberts, however, seems less concerned about the influence of any particular academic theory than of the influence of theory itself. The problem he sees is judges as Jefferson-like philosophes dedicated to jurisprudential consistency for consistency’s sake. Here, while I think the Chief Justice has a point, he is being a bit too hard on theory. One of the supposed virtue of the rule of law is predictability. This is tricky in any legal system, but doubly so in a common law system. Of course over time ambiguity can be liquidated by the sheer force of precedent. “We know the law in fact situation X because the Court decided Y in the case of Doe v. Moe, which had the same facts.” However, there are real limits on the ability of sheer judicial nominalism to produce predictable results, particularly when the only court capable of providing uniformity takes only a few dozen cases a year. Theory, on the other hand, while never providing absolute predictability does at least make outcomes a bit more reckonable. This is a real judicial virtue, not simply abstract academic hubris.
The real problem is not judges behaving like academics, but rather the enormous demand that our current practice of judicial review places on institutional legitimacy. At the end of the day, I think that Roberts is right. High-profile politics and personality at the Court is bad for the federal judiciary. Yet it is difficult to avoid such things so long as the Court functions as the final arbiter of hard-fought political contests. (And I am not just talking about Florida here.) In other words, the problem is not simply stylistic. It is also substantive. Of course there is one final reason for the problem that Roberts bemoans: Some justices thirst for an iconic status. Posturing for the history books frequently makes for bad judges (e.g. Justice Douglas), but it has hard to break a justice of the habit once he (or she) gets into it. The irony, of course, is that in making his case Roberts averred frequently to the ur-case of the iconic Supreme Court Justice: John Marshall. Maybe it would make more sense to just have them all start wearing wigs.