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Wednesday, March 08, 2006

per curiam dissents?

Nelson Lund and Craig Lerner have an article on NRO endorsing several Supreme Court reforms, including the elimination of signed opinions:

"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."

This idea clearly goes too far. In a scathing solo dissent, I think I could "name that Justice" in 6 words or less -- and it could encourage both laziness in majority opinions and radicalism in dissents. However, an intriguing possibility would be to make every opinion "unsigned" with respect to the joining justices. In other words, the "Opinion of the Court" would be unsigned, and concurrences/dissents would be signed "J. Scalia and J. Ginsburg, dissenting," etc.

One benefit would be that it might force justices to find actual consensus rather than permitting shabbily reasoned opinions slide because only one Justice is fully accountable. Also it might help resolve problems that arise when one Justice joins a majority opinion "in full" and then writes a concurrence criticizing or limiting it -- thus becoming a "super justice" in the eyes of many law professors. Lastly, it would almost certainly kill the scenario where a Justice writes the "Opinion of the Court" even when they have only a minority for parts of the opinion. If the opinion were unsigned, the Justice would have to write a separate concurrence w/r/t the part that doesn't carry a majority.

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