Judicial Review

Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions

Per curiam—literally translated from Latin to “by the court”—is defined by Black's Law Dictionary as “[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.” Accordingly, the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge. The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts's tenure, almost nine percent of the Court's full opinions were per curiams. The prevalence of issuing unattributed opinions raises questions of its impact on judicial accountability and the development of the law. This Article argues that the per curiam is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting the development of the law. Thus, the use of the per curiam in courts of last resort, including de facto courts of last resort, should be limited to a narrow class of opinions in which the use of formulaic, boilerplate language has already extinguished any sense of individuality. Opinions containing language that is more expansive must be attributed in order to serve as a check on judges' fidelity to the law and to enable the public and the legal profession to formulate an accurate understanding of the law.

Advisory Adjudication

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring and violating the Article III jurisdictional limitation on advisory opinions at the same time. The Camreta paradox illustrates a problem that makes our current conception of judicial review incoherent. We insist that the Supreme Court avoid separation of powers problems by confining itself to the retrospective adjudicatory activities envisioned by the Marbury v. Madison dispute-resolution model of judicial review. But what we really want the Court to do is participate in the prospective formulation of governmental policy, as if it were part of a tricameral legislative process. These dual conceptions of judicial review reflect a tension inherent in liberalism itself. We want both to advance our own self-interests in an unflattering pluralist political process, but simultaneously we wish to think of ourselves as other-regarding adherents to loftier civic republican virtue. We ask the Supreme Court to mediate this tension for us by making our liberal political victories look as if they are rooted in deeper communitarian principles. But this mediation can be successful only to the extent that the Court can mask for us the underlying incoherence of the judicial review function that we ask the Court to perform. In Camreta, this incoherence is so close to the surface that, hopefully, we will be forced to confront it. Without the camouflage that we ask judicial review to provide for our baser instincts, perhaps we will come to treat each other less harshly, and with more empathy.

Legal Realism, Innate Morality, and the Structural Role of the Supreme Court in the U.S. Constitutional Democracy Essay

The classical rationale for judicial review of the constitutionality of legislative and executive acts is based on a deterministic assumption about the nature of constitutional legal rules. By the early twentieth century, however, American legal realists persuasively questioned the determinacy of law in general and posited that indeterminate cases were decided by judicial intuitions of fairness. Social science research has discovered that self-identified liberals and conservatives predictably place different relative values on different shared moral intuitions. At the same time, neurological research suggests that humans and primates implement “decisions” before the cognitive parts of the brain are even aware that the subject has made a decision—potentially negating the role of cognitive reason in intuitive human decision making.
Combining these three behavioral insights—that of the realist, the psychologist, and the neurobiologist—seems to undercut the classical justification for judicial review by unelected judges. If intuitive ideology rather than reasoned application of rules controls much judicial decision making, then the Supreme Court has no more authority to issue binding interpretations of the Constitution than those branches of government whose ideological leanings are more directly subject to political controls. Nevertheless, the Supreme Court's structural role as a potential restraint on unconstitutional government action and as the ultimate arbiter of constitutional disputes, together with institutional and political restraints on judicial activism, leaves an essential practical role for judicial review in the U.S. constitutional system.