Should the Supremes stay silent?

Linda Greenhouse, Yale Law School teacher and former Supreme Court correspondent for the New York Times, has a column in yesterday's Times that is thought-provoking. She explores the question of why our confirmation process for Supreme Court nominees is so contentious, while that of other countries is not.

The answers that come quickly to mind have to do with the importance of decisions that are handled by our court and with our polarized political process. But other countries' courts also decide major constitutional questions and also require confirmation by a super-majority vote.

Greenhouse has other answers. She looked at other countries that have emulated our governmental structure of separation of powers into executive and legislative branches, with a "constitutional court with the authority to review and invalidate actions of the other two."

What she found are two significant structural differences:

1. Life tenure on the court. No other country has adopted this. Typically they serve a single, non-renewable term of 9 to 12 years. Shorter terms = more frequent turn-over. Therefore, any one appointment is not seen as so vital to the long-range liberal/conservative slant of the court.

2. The absence of dissenting opinions. Several European courts actually prohibit issuing dissenting opinions, and they are rarely given even where not explicitly prohibited. Often, at most, a separate opinion would simply state the number of justices who were not in agreement, but they are not named.

Mind you: this does not eliminate dissent. It eliminates public knowledge of who was in the majority and who dissented -- thus eliminating the politicizing of what goes on inside the court.

Greenhouse concludes:

The effect is to render the members of the court all but anonymous. It is unthinkable that justices of a European court would appeal directly to public opinion, as Justices Harry A. Blackburn and Antonin Scalia did in their dueling separate opinions in a 1992 abortion case. . . .

She goes on to cite a recent proposal by two law professors from George Mason University that Congress pass a law requiring that all opinions be anonymous. Although she concludes that this is, of course, completely out of the question, it is worth thinking about as a new confirmation debate heats up.

It took just hours after Justice Steven's retirement announcement on April 6 for the editors of National Review Online to proclaim: "The question for conservatives will be not whether but how to oppose Obama's nominee."

That seems simply partisan politics on the face of it. In the absence of any way to get rid of such knee-jerk opposition, however, perhaps it's worth taking Greenhouse's analysis seriously.

The solution to the confirmation problem could be as simple (and as impossible) as eliminating life-time tenure and dissenting opinions.

On the other hand, I'm not ready to give up reading the dissenting opinions in decisions that I abhor. The dissenting opinion sometimes seems more important, in retrospect, than the majority opinion.

Example par excellence of an unsigned decision, with no dissenting opinions given: Bush v. Gore. Wouldn't you like to have been able to read what the liberal, dissenting justices had to say about the decision that gave the presidency to George W. Bush?

Ralph