Professors Lund and Lerner on Respect for Judicial Precedent
The National Review Online featured an op-ed by Professors Nelson Lund and Craig S. Lerner in which they offer four reforms they believe would better enable justices of the U.S. Supreme Court to render decisions based on stability and precedent.
Precedent Bound? We've stopped hearing about "justices in the mold of Scalia and Thomas" -- and that could be good, National Review Online, March 6, 2006. By Nelson Lund and Craig S. Lerner.
"Whatever the unspoken motives of today's political actors, much can be said for the new consensus, and on originalist grounds at that. In the Federalist Papers, Alexander Hamilton predicted that Supreme Court Justices would be just what today's politicians say they want: scholastic types, immersed in the tedium of mind-numbing precedents, and thereby rendered cautious and profoundly boring. In short, our justices were to be classic specimens of the common-law judges familiar to Hamilton's audience, and Roberts and Alito are expected to act like throwbacks to that golden age.
"Were such throwbacks to become the norm, the resulting change would dwarf anything Scalia and Thomas could hope to accomplish by overruling a few of the wilder expressions of liberal exuberance. Even before the Warren Court made judicial activism a hot political issue, the discipline of traditional common law judges had largely been lost. Today, the dominant tradition on the Court is a culture of celebrity judges posturing as pundits."