Without Precedent

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Some judges are at least partly resigned to such shenanigans, which, as Posner suggests, are nothing new. Indeed, many judges see the Court's behavior as consistent with its history. Howlingly bad opinions, shot through with faulty reasoning and manipulated facts, have surfaced occasionally through the decades. But despite the attention such cases garner, they have never been the norm, and they are probably no more common now than in the past. Smaller, subtler failures of honesty and rigor, of the kind that drive lower-court judges nuts, may not be more common either. But they are more naked now. The sheer power of the Court is growing constantly, and as the Court asserts itself in more and more policy areas, its failings become more apparent and troublesome than in the past.

The justices don't have to observe precedent, so they fudge doctrine. They don't have to describe facts accurately, so they take liberties. They don't have to restrain themselves, so they don't. And they don't have to write opinions rigorously enough to give precise guidance to the lower courts, which do not have the luxury of winging it. So they hand down opinions that sometimes leave the lower courts breathless with astonishment. For example, I have heard no end of complaints from judges about the Supreme Court's recent series of decisions striking down state and federal sentencing rules. Part of their problem was substantive—some judges disagreed with the Court's ruling. A bigger cause for complaint, however, was that the Court had potentially invalidated thousands of sentences yet was not remotely clear about how the lower courts should handle the chaos.

The Supreme Court has a related problem with grandiosity—a tendency both to arrogate to itself decisions other actors are far better situated to make and to embellish its work with needless puffery. Justice Anthony Kennedy, not content to strike down state sodomy laws, began his opinion on the subject two years ago by rhapsodizing that "freedom extends beyond spatial bounds" and contains "more transcendent dimensions." This sort of rhetoric, which reads more like a second-rate philosophy term paper than a judicial opinion, is a far cry from the deep institutional modesty of, for example, Justice Byron White, who left the Court in 1993. Asked in 1962 about his view of the constitutional role of the Supreme Court, White responded, "To decide cases."

Richard Posner notes wryly that although the justices are "for the most part able lawyers," none is "a Philosopher King, or even a John Marshall, Oliver Wendell Holmes, Louis Brandeis, or Robert Jackson in depth of insight or … breadth of experience," so "it would be nice if they wielded their authority with greater restraint."

But it's hard to get a peacock to stop preening. And it's no less hard to create incentives for greater judicial rigor and honesty when the Supreme Court itself is the final word on what the law means. The only option, really, is shaming—and criticism of the justices from the outside doesn't seem to move them much.

Silberman speculates that the root of the problem is a design flaw in the Constitution itself. "If I had to do it all over again," he told me sadly, "if I were framing the Constitution, I would have provided that all Supreme Court justices sat for ten years and then came back as circuit judges"—in which role they would once again be bound by precedent and accountable to higher judicial authorities. As things stand, he says, "I don't have much hope. I'm so disillusioned, so much in despair … I think most judges think I'm a little naive to think the Supreme Court could ever be reduced in ego size to a court. Maybe that's right."

It probably is. But my guess is that if all the judges who privately share Silberman's anxiety—even in milder form—were more open about their views, shame would become a more powerful restraining force on the Court. Not even Supreme Court justices, after all, want to be held in contempt.

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Benjamin Wittes is an editorial writer at The Washington Post.