Advice to Chief Justice Roberts
In the recent weekend edition of the Wall Street Journal, law professor Steven G. Calabresi has an excellent op-ed (subscription required) recommending that Chief Justice Roberts implement three modest reforms that Calabresi believes could dramatically improve the not very impressive quality of many of the Supreme Court’s opinions: (1) have post-argument conference involve actual deliberation among the justices (rather than mere announcement of votes); (2) encourage justices not to join a majority opinion until they have considered the views of concurring or dissenting justices; and (3) discourage the fifth justice in a majority from writing a hand-wringing concurrence that prevents the majority opinion from providing any clear guidance.
Of these recommendations, I think the most important, or at least the first to implement, is his second. (Without offering any comment from my own experience, I will assume here that Calabresi’s description of the longstanding practice is accurate.) It should be obvious that a justice who decides to join a draft majority opinion without availing himself of the critiques of a concurring or dissenting justice is not making a fully informed decision. And, as Calabresi points out, a justice who has obtained four other votes on his draft majority opinion has a perverse incentive not to alter his opinion, no matter how devastating the concurrence or dissent.
Calabresi proposes specifically that Roberts adopt a practice of not joining a majority opinion until 30 days after it circulates and that he encourage others to follow his example. During that period, concurring or dissenting justices could circulate draft opinions or memos setting forth their concerns. Whether the no-join period is 30 days or some shorter time, the core of Calabresi’s proposal makes eminent sense.