Craig S. Lerner (George Mason University School of Law) and Nelson Lund (George Mason University School of Law) have posted “Judicial Duty and the Supreme Court’s Cult of Celebrity” on SSRN, see here. The piece is forthcoming in the George Washington Law Review. In the tradition of the recent spate of articles on reforming the Supreme Court, Professors Lerner and Lund propose four changes: (1) Congress should mandate that all Supreme Court opinions, including concurrences and dissents, be issued anonymously; (2) Congress should require the Court to hear one certified case from a circuit court for every case that originates from the Court’s purely discretionary federal question docket; (3) Congress should forbid the law clerks from drafting opinions and place all law clerks under the direction of the Supreme Court’s librarian; and (4) near and dear to my own heart, Congress should reinstitute the practice of circuit riding. The reforms proposed by Professors Lerner and Lund are designed to make the job of Supreme Court Justice more difficult and to reduce the “celebrity” status that the Justices currently enjoy. Though there are aspects of the paper with which I disagree, it is very provocative and well-done. As an added bonus, the authors have blogged recently about the article on Volokh Conspiracy, see here, here, here, here, here and here.
Bidish Sarma (The Justice Center’s Capital Appeals Project) has posted “Still in Search of a Unifying Principle: What Kennedy v. Louisiana and the Supreme Court’s Denial of the State’s Petition for Rehearing Signal for the Future” on SSRN, see here. This is an older paper that was posted on the Yale Law Journal Pocket Part website, but was not posted to SSRN until much later. I have wondered why the Supreme Court did not grant rehearing after learning that Congress had authorized the death penalty for child rape under military law. The author provides three theories: (1) the 2006 Act governing military law did not “add” the death penalty for child rape, but instead just bifurcated child rape from rape generally in order to clarify that coercion is not an element of rape when the victim is younger than twelve; (2) the Supreme Court has never looked to military law to ascertain a national consensus on evolving standards of decency; and (3) military law is distinguishable from laws governing civilians because the former tolerates some restrictions/infringements on constitutional rights. Although I am not sure that I agree with the author’s theories, this short paper (five pages) is well worth a read.