Kudos to Mr. Unikowsky for his excellent and detailed proposal to correct the many issues with the Supreme Court by using a random process to select a single Justice who would author the controlling opinion in a case. But (why is there always a ‘but’ after a compliment) there are some good arguments against the proposal which ultimately render his proposal inappropriate.
1. There is his statement “All nine Justices are extremely intelligent people.” Oh God, that this were true. In Clarence Thomas we have a Justice who is by qualifications, temperament and intelligence uniquely unqualified for the Court. He sits on the Court only because of his prior political affiliation and the color of his skin. He has never authored a significant opinion, in part because it seems likely that every CJ has been told “Never give Clarence the opportunity to author a major opinion, he doesn’t have the slightest idea of what he is talking about.”
If Clarence had his way states would be able to imprison gay men and women for the sole reason that they were gay men and women. The Establishment Clause would only apply only to the federal government, state would be free to establish a state religion. Connecticut would be free to ban the sale of condoms. A person facing capital punishment whose innocence was proven would still be put to death if his lawyer failed to adequately represent him or meet arbitrary deadlines for various filings. Well you get the picture.
The post states “Supreme Court Roulette would make opinions different, but it wouldn’t make them worse.” Justice Thomas is living proof that is not the case.
2. As a retired quantitative method professor, I can tell you that a random procedure does not always produce what looks like a random outcome. Here is a random number sequence taken from a table of random number. 1688722228. That’s right, out of a run of 10 numbers, 8 are even and the number 2 appears consecutively for four times.
Want another example. Including the 1992 election there have been 8 presidential elections. The Democrats have won a plurality or majority in seven of these. Democrats have been President for 20 of the 32 years since 1992, Republicans 12. Dems 62.5%, Republicans 37.5% of that time span. The Dems have appointed 33.3% of the Justices.
Randomness is a bitch.
3. One argument that is used in the post is that at the District level and the Circuit level judicial decisions are made by one individual judge chosen randomly. This is not entirely correct. If a District judge makes an error, there is the Circuit judge who can make a correction. A Supreme Court decision is final unless Congress acts to overturn it, an extremely unlikely, probably impossible action in today’s partisan divided House and Senate.
If the Circuit judge makes an incorrect decision there are two remedies. The first is a hearing en banc which can overturn the decision, the second is an appeal to the Supreme Court. While both of these remedies are rare given the number of cases that go through the federal court system, they do exist and they do happen. This would not be the case with a single Justice rendering the opinion.
Finally, we have judge shopping and single judge Districts/Divisions. If there is a specific outcome one wishes and that one person is a conservative, well, I got a place in Texas just for you. No randomness filing there. Need the appropriate jurisdiction for your case, no problem.
4. There is a question of when should the selection of the single Justice be made. Make the selection after oral arguments and you have wasted the time of 8 of the 9 Justices.
Make it before oral arguments and 8 out of 9 Justices do not have to prepare or participate in oral arguments. The job of Supreme Court Justice is already a part time job. This change would make it a part time part time job.
5. One reason that the disparity in the Court vis-à-vis Republican vs. Democrats is that people do not play fairly. Two of the Justices appointed by President Trump were legal appointments that violated the unwritten rules and decorum of Supreme Court nominations. Where power is concerned we cannot trust anyone to not violate the rules when those rules are not absolute law.
So under the single opinion author, randomly selected system there may be nothing to prevent Justice A who feels very strongly about the issue from cutting a deal with Justice B who won the opinion lottery but does not care to write about the issue. Justice A could say I will trade you my next two opinions if you let me author this one. If this was prohibited by law the Justices would simply resort to clandestine procedures. There is no honor among thieves or ideologues of any ideology.
6. The Court, like the nation is bitterly divided along extremes. But a majority of Americans like the middle. We want equal opportunity, but without quota’s or excessive preferences. We want parental rights in education, but not have parents dictate school curriculums. We want abortion to be safe, legal and rare and we want the welfare of the mother to be protected, but not have late term abortion on demand. A Supreme Court which is constructed of extremists on both sides would further divide the nation if a single Justice controlled an opinion.
So when the post states that “We cannot expunge randomness from judicial outcomes. We can only manage it” that is not correct. In fact, we cannot manage randomness. That is the nature of randomness. When we try to manage randomness the outcome of that effort is almost always to make the situation worse. To paraphrase Churchill, the process of deciding Supreme Court issues by majority rule is terrible and awful, except compared to all the other methods.
I'm going to correct just one of your first attacks on Clarence Thomas since you are deeply religious in your ideology and a true believer. The right of the states to have established churches was not taken away by the establishment clause. The Congregational Church was established state church in New Hampshire, Connecticut and Massachusetts, a status those states retained well into the 1800s. That's real stare decisis, not the leftist BS version that only goes in one direction. Exercise some humility when you're not analysing numerical data.
I must confess that I am somewhat confused by the above comment. I merely pointed out that under the ideology of the law by Justice Thomas the Establishment Clause would not apply to the states. Does anyone deny that?
Now personally I think that would be bad, in part because not being a Christian I am pretty certain that if a state established religion it would not be my religion. But since this Forum concerns law, let us talk about the law. And since the comment talks about "real stare decisis" let's talk about that.
In the early 19th century states did engage in the establishment of religion. (Didn't Thoreau spend a night in jail because he would not pay what was owed a church in Concord?). But a lot has happened since the 1840's, really it has, the big thing being the 14th Amendment. So today we have this legal standard from a controlling opinion by Justice Black.
"The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it
was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. [Footnote 21]
The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. [Footnote 22] There is every reason to give the same application and broad interpretation to the "establishment of religion" clause."
I will leave out the citation since the case and the opinion by Justice Black is well known. The point being that the statement that the "The right of the states to have established churches was not taken away by the establishment clause" while true in say 1860, is not true in 2023 and has not been for a long time. Now reasonable people may well disagree with the wisdom of and correctness of the language shown above, and that is their right.
But I daresay restoring the right of states to establish religion is not what I think a large portion of the citizenry would want to do. Justice Black called establishment evil and, given the history of religious wars and persecution and abuses of religious freedom by states prior to the enactment of the 14th A cited by Justice Black in the opinion that is probably true. But allowing state establishment is what Justice Thomas would do, 'real' stare decisis be damned, were he to have the ability in the system advocated by the post to author controlling opinions all by his lonesome.
Thanks for confirming the leftist view that the Constitution can be altered by Gallup polls and the fervor of a judges opinion. It's so nice to know the malleable Constitution is being protected by people like you with such virtuous feelings.
BTW I'm not impressed by a KKK judge who also authored the decision to OK internment of the Japanese. You misstated the Adamson v. California decision which wasn't a complete power grab based on the 14th Amendment by the majority even though Black was on the dissenting side arguing for complete application of the Bill of Rights to the States. Black also didn't call establishment evil. Check your own quote or come up with a different one.
You mischaracterized Thomas on the establishment clause. Here is what he wrote in the Pledge of Allegiance decision “I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.”
Black did call secular humanism a religion in footnote 11 of Torcaso v. Watkins, 367 U.S. 488 (1961). It's clear that that is the religion you think should have preferential established status.
I will end this on a note of agreement. Judicial roulette is a bad idea.
This is fascinating, the most intriguing court reform idea I have seen floated in recent memory. I hope you will follow up and address some critiques. I want to believe in this idea, but have some skepticism.
1. This seems to work really well at the level of the judgment, but maybe not at the level of reasoning and how far the decision goes? In Dobbs, there were 6 votes to uphold the law at issue and 3 to strike it down, so under your system the dissenters would have had a 33% chance of prevailing instead of 0%. But if I am Clarence Thomas, why don't I, instead of joining the Alito majority, simply concur in the judgment while writng an opinion that - like his Dobbs concurrence - sweeps more broadly and strikes down Obergefell, Lawrence, etc, figuring that such an opinion does not reduce the odds of reversing Roe but does give an 11% chance of getting everything I want even though 89% of the court does not agree?
2. It does seem like, on political cases, conservatives (because they have the majority now) might keep taking bites at the apple until they finally prevail.
3. Would this approach be strictly for merits opinions or also apply to emetgency motions?
Your premise is that all justices are intelligent, ethical individuals with deep knowledge of the law such that their differences are solely a product of different philosophies that influence their reading of the Constitution. In fact, there is nothing about our system of appointing or approving or overseeing these specific members of the judiciary that allows me to accept your premise. While I cannot disagree with your criticisms of "majority rule", I also shudder at the prospect of random draw. Supreme Court justices are vested with enormous power and authority. For life. The only thing that allows me to rest easy with placing that much power in the hands of so few people is the dilutive effect of majority rule. All it takes is one arrogant, corrupt justice. And surely the odds are pretty good that, at some point, past, present or future, there will be one.
Imagine a world where one person, chosen randomly, gets to pick the President every 4 years. If you see some bad consequences to that idea, I think you'll see some bad consequences to Unikowsky's idea too.
There's a famous thing in mathematics called Godel's Incompleteness Theorem (GIT). It says that any sufficiently complicated logical system (e.g., the axioms that define simple arithmetic with positive integers are sufficiently complicated) will either (a) have some questions that cannot be answered or (b) have intrinsic logical inconsistencies. I sometimes think about an idealized version of our legal system that way, e.g., with the Constitution as the basic axiom. In a system to which GIT applies, we've either got choice (a) or choice (b). Our current pretense is that the system can eventually answer all questions in a consistent manner indicating that GIT does not apply. Supreme Court Roulette would, it seems to me, guarantee the presence of logical inconsistencies and destroy the current pretense.
This is a novel and interesting idea but I have serious concerns. The other commenters have already explained most of those better than I could. I would like to add one more.
Even if we were to assume that all justices appointed to the Court are fit at the time of appointment, that wouldn't guarantee that they remain so throughout their tenure. Set aside the temptations of power; judges can become unfit through any number of health problems that impair their mental ability. Sometimes, that very impairment will prevent judges from appreciating its severity. There are acknowledged instances of this affecting a judge's ability to serve, as well as many suspected but unconfirmed cases. In a system of life tenure, with justices increasingly reluctant to retire until "their" party holds the White House, this risk becomes very high.
How would judicial roulette address this? At worst, a mentally impaired justice could set federal law - or even fix the meaning of the Constitution - in one out of nine cases. At best, roulette would amplify the effect that incapacity has on the Court's schedule and resources, significantly delaying resolution of potentially important issues.
I believe I learned on a behind-the-scenes tour of the Ohio Supreme Court that it randomly assigns the majority opinion in a case before oral argument. However, in this real-life example, the opinion will then be reassigned if that justice ultimately does not end up in the majority.
I'm not sure how we currently do it for the random assignments in federal district court, but presumably there isn't currently doubt about those dice being loaded, and we could copy the same mechanism for the Supreme Court.
Kudos to Mr. Unikowsky for his excellent and detailed proposal to correct the many issues with the Supreme Court by using a random process to select a single Justice who would author the controlling opinion in a case. But (why is there always a ‘but’ after a compliment) there are some good arguments against the proposal which ultimately render his proposal inappropriate.
1. There is his statement “All nine Justices are extremely intelligent people.” Oh God, that this were true. In Clarence Thomas we have a Justice who is by qualifications, temperament and intelligence uniquely unqualified for the Court. He sits on the Court only because of his prior political affiliation and the color of his skin. He has never authored a significant opinion, in part because it seems likely that every CJ has been told “Never give Clarence the opportunity to author a major opinion, he doesn’t have the slightest idea of what he is talking about.”
If Clarence had his way states would be able to imprison gay men and women for the sole reason that they were gay men and women. The Establishment Clause would only apply only to the federal government, state would be free to establish a state religion. Connecticut would be free to ban the sale of condoms. A person facing capital punishment whose innocence was proven would still be put to death if his lawyer failed to adequately represent him or meet arbitrary deadlines for various filings. Well you get the picture.
The post states “Supreme Court Roulette would make opinions different, but it wouldn’t make them worse.” Justice Thomas is living proof that is not the case.
2. As a retired quantitative method professor, I can tell you that a random procedure does not always produce what looks like a random outcome. Here is a random number sequence taken from a table of random number. 1688722228. That’s right, out of a run of 10 numbers, 8 are even and the number 2 appears consecutively for four times.
Want another example. Including the 1992 election there have been 8 presidential elections. The Democrats have won a plurality or majority in seven of these. Democrats have been President for 20 of the 32 years since 1992, Republicans 12. Dems 62.5%, Republicans 37.5% of that time span. The Dems have appointed 33.3% of the Justices.
Randomness is a bitch.
3. One argument that is used in the post is that at the District level and the Circuit level judicial decisions are made by one individual judge chosen randomly. This is not entirely correct. If a District judge makes an error, there is the Circuit judge who can make a correction. A Supreme Court decision is final unless Congress acts to overturn it, an extremely unlikely, probably impossible action in today’s partisan divided House and Senate.
If the Circuit judge makes an incorrect decision there are two remedies. The first is a hearing en banc which can overturn the decision, the second is an appeal to the Supreme Court. While both of these remedies are rare given the number of cases that go through the federal court system, they do exist and they do happen. This would not be the case with a single Justice rendering the opinion.
Finally, we have judge shopping and single judge Districts/Divisions. If there is a specific outcome one wishes and that one person is a conservative, well, I got a place in Texas just for you. No randomness filing there. Need the appropriate jurisdiction for your case, no problem.
4. There is a question of when should the selection of the single Justice be made. Make the selection after oral arguments and you have wasted the time of 8 of the 9 Justices.
Make it before oral arguments and 8 out of 9 Justices do not have to prepare or participate in oral arguments. The job of Supreme Court Justice is already a part time job. This change would make it a part time part time job.
5. One reason that the disparity in the Court vis-à-vis Republican vs. Democrats is that people do not play fairly. Two of the Justices appointed by President Trump were legal appointments that violated the unwritten rules and decorum of Supreme Court nominations. Where power is concerned we cannot trust anyone to not violate the rules when those rules are not absolute law.
So under the single opinion author, randomly selected system there may be nothing to prevent Justice A who feels very strongly about the issue from cutting a deal with Justice B who won the opinion lottery but does not care to write about the issue. Justice A could say I will trade you my next two opinions if you let me author this one. If this was prohibited by law the Justices would simply resort to clandestine procedures. There is no honor among thieves or ideologues of any ideology.
6. The Court, like the nation is bitterly divided along extremes. But a majority of Americans like the middle. We want equal opportunity, but without quota’s or excessive preferences. We want parental rights in education, but not have parents dictate school curriculums. We want abortion to be safe, legal and rare and we want the welfare of the mother to be protected, but not have late term abortion on demand. A Supreme Court which is constructed of extremists on both sides would further divide the nation if a single Justice controlled an opinion.
So when the post states that “We cannot expunge randomness from judicial outcomes. We can only manage it” that is not correct. In fact, we cannot manage randomness. That is the nature of randomness. When we try to manage randomness the outcome of that effort is almost always to make the situation worse. To paraphrase Churchill, the process of deciding Supreme Court issues by majority rule is terrible and awful, except compared to all the other methods.
I'm going to correct just one of your first attacks on Clarence Thomas since you are deeply religious in your ideology and a true believer. The right of the states to have established churches was not taken away by the establishment clause. The Congregational Church was established state church in New Hampshire, Connecticut and Massachusetts, a status those states retained well into the 1800s. That's real stare decisis, not the leftist BS version that only goes in one direction. Exercise some humility when you're not analysing numerical data.
I must confess that I am somewhat confused by the above comment. I merely pointed out that under the ideology of the law by Justice Thomas the Establishment Clause would not apply to the states. Does anyone deny that?
Now personally I think that would be bad, in part because not being a Christian I am pretty certain that if a state established religion it would not be my religion. But since this Forum concerns law, let us talk about the law. And since the comment talks about "real stare decisis" let's talk about that.
In the early 19th century states did engage in the establishment of religion. (Didn't Thoreau spend a night in jail because he would not pay what was owed a church in Concord?). But a lot has happened since the 1840's, really it has, the big thing being the 14th Amendment. So today we have this legal standard from a controlling opinion by Justice Black.
"The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it
was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. [Footnote 21]
The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. [Footnote 22] There is every reason to give the same application and broad interpretation to the "establishment of religion" clause."
I will leave out the citation since the case and the opinion by Justice Black is well known. The point being that the statement that the "The right of the states to have established churches was not taken away by the establishment clause" while true in say 1860, is not true in 2023 and has not been for a long time. Now reasonable people may well disagree with the wisdom of and correctness of the language shown above, and that is their right.
But I daresay restoring the right of states to establish religion is not what I think a large portion of the citizenry would want to do. Justice Black called establishment evil and, given the history of religious wars and persecution and abuses of religious freedom by states prior to the enactment of the 14th A cited by Justice Black in the opinion that is probably true. But allowing state establishment is what Justice Thomas would do, 'real' stare decisis be damned, were he to have the ability in the system advocated by the post to author controlling opinions all by his lonesome.
Thanks for confirming the leftist view that the Constitution can be altered by Gallup polls and the fervor of a judges opinion. It's so nice to know the malleable Constitution is being protected by people like you with such virtuous feelings.
You are very welcome
BTW I'm not impressed by a KKK judge who also authored the decision to OK internment of the Japanese. You misstated the Adamson v. California decision which wasn't a complete power grab based on the 14th Amendment by the majority even though Black was on the dissenting side arguing for complete application of the Bill of Rights to the States. Black also didn't call establishment evil. Check your own quote or come up with a different one.
You mischaracterized Thomas on the establishment clause. Here is what he wrote in the Pledge of Allegiance decision “I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.”
Black did call secular humanism a religion in footnote 11 of Torcaso v. Watkins, 367 U.S. 488 (1961). It's clear that that is the religion you think should have preferential established status.
I will end this on a note of agreement. Judicial roulette is a bad idea.
Thanks!
This is fascinating, the most intriguing court reform idea I have seen floated in recent memory. I hope you will follow up and address some critiques. I want to believe in this idea, but have some skepticism.
1. This seems to work really well at the level of the judgment, but maybe not at the level of reasoning and how far the decision goes? In Dobbs, there were 6 votes to uphold the law at issue and 3 to strike it down, so under your system the dissenters would have had a 33% chance of prevailing instead of 0%. But if I am Clarence Thomas, why don't I, instead of joining the Alito majority, simply concur in the judgment while writng an opinion that - like his Dobbs concurrence - sweeps more broadly and strikes down Obergefell, Lawrence, etc, figuring that such an opinion does not reduce the odds of reversing Roe but does give an 11% chance of getting everything I want even though 89% of the court does not agree?
2. It does seem like, on political cases, conservatives (because they have the majority now) might keep taking bites at the apple until they finally prevail.
3. Would this approach be strictly for merits opinions or also apply to emetgency motions?
Your premise is that all justices are intelligent, ethical individuals with deep knowledge of the law such that their differences are solely a product of different philosophies that influence their reading of the Constitution. In fact, there is nothing about our system of appointing or approving or overseeing these specific members of the judiciary that allows me to accept your premise. While I cannot disagree with your criticisms of "majority rule", I also shudder at the prospect of random draw. Supreme Court justices are vested with enormous power and authority. For life. The only thing that allows me to rest easy with placing that much power in the hands of so few people is the dilutive effect of majority rule. All it takes is one arrogant, corrupt justice. And surely the odds are pretty good that, at some point, past, present or future, there will be one.
Imagine a world where one person, chosen randomly, gets to pick the President every 4 years. If you see some bad consequences to that idea, I think you'll see some bad consequences to Unikowsky's idea too.
There's a famous thing in mathematics called Godel's Incompleteness Theorem (GIT). It says that any sufficiently complicated logical system (e.g., the axioms that define simple arithmetic with positive integers are sufficiently complicated) will either (a) have some questions that cannot be answered or (b) have intrinsic logical inconsistencies. I sometimes think about an idealized version of our legal system that way, e.g., with the Constitution as the basic axiom. In a system to which GIT applies, we've either got choice (a) or choice (b). Our current pretense is that the system can eventually answer all questions in a consistent manner indicating that GIT does not apply. Supreme Court Roulette would, it seems to me, guarantee the presence of logical inconsistencies and destroy the current pretense.
This is a novel and interesting idea but I have serious concerns. The other commenters have already explained most of those better than I could. I would like to add one more.
Even if we were to assume that all justices appointed to the Court are fit at the time of appointment, that wouldn't guarantee that they remain so throughout their tenure. Set aside the temptations of power; judges can become unfit through any number of health problems that impair their mental ability. Sometimes, that very impairment will prevent judges from appreciating its severity. There are acknowledged instances of this affecting a judge's ability to serve, as well as many suspected but unconfirmed cases. In a system of life tenure, with justices increasingly reluctant to retire until "their" party holds the White House, this risk becomes very high.
How would judicial roulette address this? At worst, a mentally impaired justice could set federal law - or even fix the meaning of the Constitution - in one out of nine cases. At best, roulette would amplify the effect that incapacity has on the Court's schedule and resources, significantly delaying resolution of potentially important issues.
I believe I learned on a behind-the-scenes tour of the Ohio Supreme Court that it randomly assigns the majority opinion in a case before oral argument. However, in this real-life example, the opinion will then be reassigned if that justice ultimately does not end up in the majority.
How do you avoid loaded dice? What do you do retroactively if the dice were loaded?
I'm not sure how we currently do it for the random assignments in federal district court, but presumably there isn't currently doubt about those dice being loaded, and we could copy the same mechanism for the Supreme Court.