The One Change John Roberts Can Make to Depoliticize the Supreme Court
Don't list the names of the Justices in the decision or the dissent, if any- per curiam opinions—anonymous opinions
***But if Roberts is serious about protecting his fellow jurists from future political attacks, then he must do more than issue stern statements of disapproval. Instead, he should reconsider the way the court conveys its decisions to the public. Specifically, he should make per curiam opinions—anonymous opinions, issued without disclosing the identity of the authoring judge or the voting blocs’ membership—the new standard. Per curiam opinions circumvent the political cues associated with a given justice’s identity and instead allow the court to present its holdings as an institution. Not only would this shield thejustices from being targeted as individuals, but research also shows that it would strengthen public support for the court’s decisions.
From the Supreme Court’s perspective, political attacks against its members are worrisome, no matter who levies them. Without a mechanism to enforce its holdings, the Supreme Court must rely on the other political branches to respect its decisions. Critiques that frame the court’s behavior as political can erode its perception as a legitimate institution. And without widely accepted public deference, the court is powerless.
The court has issued per curiam opinions throughout its history, although its use of these opinions has been far from methodical, ranging from landmark cases to the mundane with no rhyme or reason up to now as to why. Systematically removing the identity of the opinions’ authors would convey several benefits. First, peer-reviewed research, conducted by myself and several coauthors, has shown that the use of per curiam opinions strengthens the level of support decisions receive. In a series of survey experiments, we held constant a court opinion’s content—that is, the actual legal holding of the case—but we randomized the identity of the authoring justice. In one study, we investigated whether support for a given case was conditioned on the ideology of the authoring justice. In another, we sought to gauge whether the use of per curiam opinions garnered more support compared to cases with an identified author. In both instances, we found that individuals adjust their level of agreement based on their perception of the opinion author rather than the case disposition itself, and per curiam opinions garnered the greatest level of support of all.
Thoughts?