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American (Judicial) Idol—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on Newyorktimes.com on April 23, 2010.

American (Judicial) Idol
By Linda Greenhouse ’78 MSL

Americans are justifiably proud of having given the world a model for the architecture of democratic self-government. Democracies old and new have emulated the separation of powers and the idea of a constitutional court with the authority to review and invalidate actions of the other branches.

But it is both instructive and humbling to dig a little deeper into how other countries’ constitutional courts actually work — instructive because the surface similarities obscure meaningful differences, and humbling because it just might be that the best of all possible worlds is not to be found in Washington.

These thoughts are prompted by a question that arose in a law school seminar I’ve been teaching on the Supreme Court appointment process: why do other countries not suffer from the same toxic confirmation battles that we do?

It’s not because the United States Supreme Court maintains a hotter docket. Courts in other countries frequently decide cases with major implications for domestic politics. The Canadian Supreme Court declared that country’s abortion law unconstitutional in 1988. In 1995, the brand-new South African Constitutional Court struck down the death penalty.

Rather, structural differences are what seem to matter: how justices are appointed, how long they serve — and also how they behave once on the bench.

No other country has adopted the U.S. model of life tenure for judges. High-court judges typically serve for a single nonrenewable term of 9 to 12 years — a period during which Supreme Court justices in the United States are just getting warmed up. These shorter terms ensure frequent turnover and allay fears about a party in power being able to lock up the court for decades through the fortuity of a large number of vacancies; each vacancy naturally carries less weight.

Many other systems require confirmation by a legislative supermajority — two-thirds in Germany, for example — which tends to drive appointments to the middle of the political spectrum. While the supermajority rule may look much the same as the need to find 60 votes in the U.S. Senate to overcome a filibuster, there is a big difference. A filibuster is a power play, a manifestation of political meltdown, while a rule that is hard-wired into the system is politically neutral and permits everyone to plan ahead.

Further, there is an element of judicial behavior that in the context of American judicial behavior sounds downright bizarre, yet is common elsewhere: the absence of dissenting opinions. The constitutional courts of France, Italy and Austria, as well as the European Court of Justice, actually prohibit dissenting or other separate opinions. And such opinions are rare even where they are not explicitly banned. An occasional opinion may indicate that a certain number of justices were not in agreement, but the justices are not identified by name.

The effect is to render the members of the court all but anonymous. It is unthinkable that justices of a European court would appeal directly to public opinion, as Justices Harry A. Blackmun and Antonin Scalia did in their dueling separate opinions in a 1992 abortion case, Planned Parenthood v. Casey. Justice Blackmun, pointing out that the right to abortion had been preserved by one vote in that 5-to-4 decision, wrote at the end of his opinion: “I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today.” (Justice John Paul Stevens tried unsuccessfully to persuade Justice Blackmun to omit that inflammatory line.) Justice Scalia, on the losing side, then included this comeback in his own opinion: “Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.”

Two professors from George Mason University School of Law in Virginia recently proposed that Congress should cure the Supreme Court of its “cult of celebrity” by passing a statute to require that all opinions be anonymous. Unsigned opinions would “provide the justices with incentives to behave more like traditional judges and less like publicity-hungry politicians,” Craig S. Lerner and Nelson Lund wrote.

Completely out of the question, of course, but a useful thought experiment as we head into yet another nomination season. It took just hours after Justice Stevens’s retirement announcement on April 9 for the editors of National Review Online to proclaim: “The question for conservatives will be not whether but how to oppose Obama’s nominee.” Without intending to excuse this kind of knee-jerk obstructionism, I still have to wonder whether it is just possible that our judicial politics comes with the package, that our faults are at least to some extent not in ourselves but in our stars.