Lund Speaks at ACS National Convention

On Friday, June 12, 2015, University Professor Nelson Lund participated in a plenary panel at the 2015 American Constitution Society National Convention.

The topic of the panel was “Is the Supreme Court a Failure (and if so, What Can Be Done About It)?” Bloomberg BNA covered the panel discussion in a recent article.


Professor Nelson Lund of the George Mason University Law School, Arlington, Va., offered four dramatic proposals to improve how the high court functions:

* Anonymous opinions: Requiring anonymous opinions would “curtail a lot of the showboating,” Lund said. “Many opinions aren't written for lawyers, they're written for the New York Times and casebook editors,” he said.

* Expand jurisdiction: Federal courts of appeals can certify questions to the high court, but in practice it never takes them. “For every cert. grant on a federal question, make the court pick one certified case from the court of appeals,” to force them to “deal with issues lower courts think they need guidance on,” Lund said.

* No law clerks: Clerks have “a very pernicious effect and influence,” Lund said. “Require the justices to write their own opinions-if they actually had to do their own job you’d have fewer justices who stayed in the saddle long past the point at which they can mount the horse,” he said. On the other hand, “the voice of a younger generation is the most important role clerks play,” [University of Chicago Law School Professor Justin] Driver said. “It’s incredibly valuable for the justices to have someone in their chambers they can talk to” about technology or social issues, he said.

* Circuit riding: For 100 years, supreme court justices were required to do circuit riding but “managed to get rid of it,” Lund said. “Bring it back. They’ve got plenty of time in the summer, they can spend less time in the alps and more time in the lower courts doing real judicial work,” he said.

“I think these are all very modest proposals,” Lund joked, earning laughs from the crowd.

Supreme Court a ‘Failure’? Too Technical, Not Enough Life Experience, Panel Says, Bloomberg BNA, June 15, 2015. By Jeffrey D. Koelemay.