May 30, 2006
Of Sorcery and Sausages
Richard Posner sometimes gets a bad rap for his relatively political view of the legal process. While my own views on this are more rule-bound and legalistic than his (he would say archaic and self-deceptive), I think he tends to be misunderstood by most. At any rate, he has a new book review in The New Republic discussing the increased power and prestige of the Supreme Court law clerk, which he is not thrilled by. Relatedly, he is also troubled by the move toward increased secrecy in judicial deliberations.
The standard argument is that secrecy is necessary for candid communications among the justices and between the justices and their clerks. But judicial decisions, unlike business and political and military decisions, are supposed to be based, and rightly so, on reasons that can be stated publicly without embarrassment. Sorcerers' Apprentices quotes some disreputably partisan clerks' memos in "hot" cases, for example involving abortion. If publicity deterred clerks from writing such memos, the nation would not be the loser.
Marty Lederman has some further thoughts on the Posner review. Orin Kerr also discusses the books on his blog here and here.
Marty also wonders whether Posner is right that it would be helpful to the Supreme Court bar to reveal the cert. pool memos. I have no idea, since I have never seen them, but it does seem likely to me that more information would generally be more helpful than less. The risk might be that increased attention to denials of cert. would contribute even more to the current error of thinking that "cert denied" is an endorsement. But the effect is quite likely to be the opposite.
A commenter over there asks "do you really want to know how sausage is made?" I have to say that whatever the merit of blissful ignorance as applied to encased meats, it really is an apalling sentiment as applied to the making of judicial or statutory law. Of course I want to know, how else to make sure that the people rule the government rather than the government ruling the people?
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Johnny's Half-Shell
The experience of the billable hour forces me to account (to myself and to others) about how my time is spent at work, which has caused me to drastically slash blogging and emailing during the work day. The result is probably going to be some more disjointed musings like mine below, and lots of thoughts about food.
Former co-blogger Raffi and I went to Johnny's Half-Shell for dinner. We skipped dessert and wine in order to get fish and more fish. (The bread had lots of holes, which was good, but the texture of having been stored in a bag for a while. It was probably very good before it went into the bag.) Raffi's gravlax was "tequilla-cured," and the result tasted a lot like good gravlax accompanied by a tequilla shot. The tequilla didn't really add anything, but didn't really subtract anything either. It was almost as if the place was just embarrassed to serve plain gravlax. My roasted littlenecks were phenomenal-- tangy and sweet.
Entrees were not quite as good. Both the soft-shell crab and my roast cod had developed a slightly imperfect texture. Normally I would think this was the result of sitting too long under the heat lamp, but that wouldn't explain both of our entrees. Why keep both plates for a two-person party waiting?
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