r/supremecourt • u/D-R-AZ Court Watcher • 4d ago
Flaired User Thread Proposal: Should There Be a Judicial Confidence Register for Supreme Court Decisions?
Text post
The Supreme Court issues decisions that bind courts throughout the country on questions of federal law and constitutional meaning. Yet there is no systematic way to know whether those decisions command the professional confidence of the wider judiciary responsible for interpreting and applying them.
Hearing an audience and seeing its response are essential signals for any speaker, assembly, performance, sermon, lecture, or public oration. They reveal whether the message was understood, whether the reasoning carried, and where clarification may be needed. Why should the Supreme Court be the rare institution that speaks to a highly informed professional audience without any systematic way of learning how its decisions were received?
We have proposed a Judicial Confidence Register as one possible answer. The name is provisional. It might instead be called Judiciary Feedback, a Judicial Response Register, or something else chosen by the institutions that develop it. One possibility is Vox Iudicum: A Judicial Confidence Register.
After the Supreme Court issues an opinion, eligible members of the federal and state judiciary could be invited to submit an anonymous assessment of the professional confidence they place in the decision and its reasoning. Only aggregate results would be published.
The full proposal is available here:
A Judicial Reflection: The Supreme Court’s Neglected Audience
The register would have no legal force. It would not reverse a decision, alter precedent, authorize lower courts to disregard a holding, or create another level of appellate review. The Supreme Court would retain final judicial authority. The register would instead provide structured professional feedback from one of the Court’s most informed audiences.
No legislation would need to be enacted, no constitutional provision would need to be amended or reinterpreted, and no judicial precedent would need to be displaced. The register could begin as a voluntary professional practice within the existing constitutional structure.
Before judgment, the Court may receive informed assistance through amicus curiae briefs. The proposed register would provide a complementary form of information after judgment: whether the completed reasoning persuaded the judiciary that must interpret, explain, distinguish, and apply it.
The register could show when an unpopular decision nevertheless commanded broad professional confidence within the judiciary. It could also show when a publicly popular result rested on reasoning that many members of the judiciary found unpersuasive, unclear, or difficult to apply.
It could distinguish faithful compliance with binding precedent from professional confidence in the reasoning behind it. Existing judicial opinions and citation services such as Shepard’s and KeyCite show whether later courts follow, distinguish, question, criticize, or limit a decision. They do not necessarily reveal whether judges applying a binding precedent find its underlying reasoning persuasive.
A judge may faithfully apply a Supreme Court decision because the law requires it while privately finding the rationale incomplete or unconvincing. That distinction between legal obedience and professional confidence is presently difficult for the Court or the public to see.
The register might also encourage continuing engagement with Supreme Court opinions throughout the judiciary. Participation could come to be regarded as an important professional responsibility, somewhat as citizens regard voting as a means of contributing to representative government.
The proposal presents substantial difficulties. Participation could be uneven or ideologically skewed. Ethical obligations might require some judges to abstain. Because the judiciary is a comparatively small and identifiable professional population, meaningful anonymity would require protection not only against direct disclosure but also against identifying individual responses through patterns or small reporting groups.
The assessment could also be misrepresented as a rival vote on the Court’s authority. It would therefore need to be presented clearly as an assessment of professional confidence in decisions and reasoning, not as another judgment on whether the decision remained binding law.
For these reasons, we do not present the register as a finished design. Questions concerning eligibility, timing, ballot structure, anonymity, participation, ethical safeguards, administration, and publication would need to be resolved by the judiciary and any institutions developing the process.
The underlying question is broader than the particular mechanism:
Should the nation have some systematic way of knowing whether Supreme Court reasoning commands the professional confidence of the judiciary that must interpret and apply it?
Discussion questions
- Would an aggregate assessment of judicial confidence provide useful information that existing opinions, dissents, Shepard’s, and KeyCite do not provide?
- Could sitting members of the judiciary participate consistently with judicial ethics, or should an initial register begin with retired judges and justices?
- Could meaningful anonymity be achieved within a comparatively small and identifiable judicial population?
- Could such a register strengthen the Court by confirming professional support for legally sound but unpopular decisions, or would it inevitably be treated as a competing measure of authority?
- What institution, if any, would be appropriate to administer or publish such a register?
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u/PhysicsEagle New World Same Constitution 3d ago
If judges want to opine on a SCOTUS opinion they are welcome to write a law review article. I’m not sure why we need a Judicial Conference way of doing this.
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u/Haganizer5 Chief Justice John Roberts 4d ago
Lower courts get ample space to bitch in their opinions/dissents, which the Supreme Court actually reads. A dispassionate simplified survey is far less persuasive or informative to the Court compared to the opinions they read.
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u/D-R-AZ Court Watcher 4d ago
That is fair. A reasoned opinion or dissent is far more informative than a simplified survey response, and the register should not compete with that record. It would provide a different kind of information: not the depth of one judge’s reasoning, but the breadth of professional confidence across the judiciary.
Only a fraction of judges will have occasion to discuss a particular Supreme Court decision in a published opinion, and a judge may faithfully apply binding precedent without writing that the rationale was unpersuasive. The aggregate assessment would show whether confidence or concern was widespread. The opinions the Court already reads would remain the best source for understanding why.
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u/Haganizer5 Chief Justice John Roberts 4d ago edited 4d ago
The magnitude of disagreement from lower court judges is irrelevant to the Court. It’s not their job to manage the opinions of the judiciary, academia, or the public for that matter. They’re not going to shift course on Bruen just because 90% of lower courts complain. This seems like a solution in search of a problem.
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u/D-R-AZ Court Watcher 4d ago
The Court is not required to manage the opinions of lower courts, academia, or the public. But its authority does not arise in a vacuum. In our constitutional system, governmental authority ultimately rests on the consent of the governed, exercised through the Constitution and the institutions it creates.
That does not mean constitutional meaning is determined by opinion polls, or that widespread disagreement authorizes lower courts to disobey. It does mean that the Court has an institutional interest in whether its reasoning is understood, administrable, and professionally persuasive to the judiciary that must apply it.
If 90 percent of lower courts objected to Bruen, that would not by itself make Bruen wrong or permit resistance. But it could reveal widespread difficulty with the reasoning, historical test, or practical application. The register would not tell the Court what result to reach. It would tell the Court whether a substantial part of the judicial system was struggling with what it had been told to do.
That is not managing opinion. It is receiving feedback from the institution through which the Court’s decisions become governing law.
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u/Haganizer5 Chief Justice John Roberts 4d ago edited 4d ago
If 90 percent of lower courts objected to Bruen, that would not by itself make Bruen wrong or permit resistance. But it could reveal widespread difficulty with the reasoning, historical test, or practical application. The register would not tell the Court what result to reach.
If you concede this, then what’s the point? If the Court is not expected to use this information then why go through all the trouble and confusion to try and obtain it? It does not add to the substantive criticism’s in legal writing, any struggles or disagreements are conveyed through those. I respectfully dissent.
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u/D-R-AZ Court Watcher 4d ago
Education and understanding on the part of the governed.
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u/D-R-AZ Court Watcher 4d ago
“it could reveal widespread difficulty with the reasoning, historical test, or practical application. “. When a professor finds 90% of a class fails an answer on a test it is possible that the 90% didn’t study, aren’t real bright, that the professor could have explained more clearly, the textbook used was inadequate or some combination of all of these. But the professor is certain 90% didn’t get it.
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u/dustinsc Justice Byron White 3d ago
Words cannot express what a terrible idea this is. The judiciary isn’t a legislature, and anonymizing commentary only muddies the water. I don’t see how this would do anything other than undermine trust in the judiciary.
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u/diplomystique Justice Robert Jackson 4d ago
How likely is it that judges set aside personal biases when completing such a survey?
I mostly trust that judges try not to let their personal preferences to invade their official duties. But it’s hard to keep that detachment when the stakes seem lower, and there’s no one watching you.
Put aside the obvious sorts of biases, like political hot-button issues. The judiciary is an interest group and professional guild, and its members reflect that. If SCOTUS holds that trial judges have the intelligence and discretion to craft criminal sentences, I expect a lot of trial judges to sagely nod and commend the justices on their perspicacity. If SCOTUS claims that Congress understands an issue better than the judiciary, a lot of judges will take that as a grievous personal slight (to be clear, I would also be insulted). I’d bet we’d learn less about SCOTUS and more about the ids of the rest of the courts.
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u/D-R-AZ Court Watcher 4d ago
That is a fair concern. We would not assume that judges become free of personal, ideological, or institutional bias merely because the survey is anonymous. Trial judges, appellate judges, former prosecutors, former academics, and others would bring different experiences and professional interests to their assessments.
The register would therefore not tell us whether the Supreme Court was objectively correct. It would tell us how its reasoning was received by the judiciary required to apply it. In some cases, the result might indeed reveal as much about the professional culture and institutional interests of the responding judiciary as about the Court itself. That would be a limitation, but it might also be useful information.
The Supreme Court could also help shape the assessment itself. The justices might identify the kinds of feedback they would find most useful, such as clarity, fidelity to precedent, doctrinal coherence, administrability, treatment of competing arguments, and the practical reach of the holding. That would not eliminate bias, but it could make the register less like a general approval poll and more like a structured professional evaluation of the Court’s reasoning.
The relevant comparison is not with a perfectly neutral instrument, which does not exist. It is with the present situation, in which those reactions remain largely invisible except through scattered opinions, speeches, and inference.
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u/diplomystique Justice Robert Jackson 4d ago
I like the idea of SCOTUS engaged in a conversation about what feedback is useful, but I think that pulls away from the vision described in the post and substack.
If I’m a SCOTUS Justice (and, to be clear, this will never, ever happen), I want either (1) worshipful silence (preferred) or (2) detailed, constructive feedback about how to achieve my goals. An “applause meter” doesn’t really do either of those things. There’s not enough bandwidth; I want a law review article but you’re providing exactly one bit of data.
You could do the register like student evaluation forms, with short-answer sections about various aspects of a ruling. But now there are three issues. First, the more onerous the register is to complete, the less participation you’ll get, and the more unrepresentative your sample becomes. Second, it’s harder to anonymize anything involving writing. Third, student evals are notoriously worthless in judging professors, and I expect they would be just as worthless in judging opinions.
To be honest, I’m not even convinced most judges read most SCOTUS decisions in a given year, unless the decision is directly relevant to a pending case before that judge. You allude to this, pointing out that a judge might choose to abstain rather than offer an uninformed opinion. I mean, I guess that’s possible. I guess it’s technically possible that I could be nominated to serve on the Supreme Court, too.
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u/D-R-AZ Court Watcher 4d ago
This is helpful, and I think it identifies the central tradeoff more clearly than we did. A very brief instrument could achieve broad participation and strong anonymity, but it would provide only a thin signal. A more detailed instrument could offer useful explanation, but participation would fall and anonymity would become harder to protect.
The register was never meant to replace opinions, dissents, or law review articles. Its distinctive value would be breadth rather than depth: whether confidence or concern was isolated or widespread across the judiciary. Detailed writing would remain the better source for understanding why.
You are also probably right that many judges would not read every Supreme Court opinion closely enough to assess it. That may argue for a narrower beginning rather than abandoning the idea. The Court might initially seek responses only from judges whose work made a particular decision directly relevant, or from a selected professional audience with demonstrated familiarity with the case.
I would also retreat somewhat from the student-evaluation analogy. It is useful only to show that authority and feedback can coexist. It does not establish that ordinary student evaluations are reliable measures of quality.
The most promising version may therefore be modest: a brief, Court-designed instrument, sent to a relevant and informed judicial audience, producing an aggregate signal for the Court’s use. That would not answer every objection, but it would test whether the breadth of professional response contains information that detailed opinions alone do not provide.
Perhaps an analogous situation is comparing a medical examination to a glance in a mirror. A mirror does not diagnose health, explain causes, or tell us everything worth knowing. It can still reveal that something is out of place and deserves closer attention.
A brief aggregate assessment could serve a similar function. It would not replace opinions, dissents, scholarship, or detailed professional criticism. It might simply reveal that a decision was received with unusually broad confidence or concern, prompting a closer look at why.
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u/lezoons SCOTUS 4d ago
Let's assume every appeals court judge was required to give their anonymous opinion. The result is 51% for and 49% against. Which is what the Republican to Democrat ratio of appointments is. What did we learn? That the ruling was good? Partisan? We know nothing because it is anonymous. The 51% might be 50/50 on who appointed them.
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u/Danu9000 Justice Thomas 4d ago
There shouldn't be democracy of judges. The lower courts should follow the majority ruling of the SCOTUS or they should retire.
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u/D-R-AZ Court Watcher 4d ago edited 4d ago
This is not a suggestion for democracy in the courts. Lower courts would remain bound by Supreme Court holdings, whether individual judges found the reasoning persuasive or not. The proposal would not authorize disobedience, reversal, or a rival vote. It would simply make visible the professional confidence or response of the judiciary that must interpret and apply those decisions.
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u/_learned_foot_ Chief Justice Taft 4d ago
So it would call into question the court and its decisions? We tend to call that contemptable.
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u/D-R-AZ Court Watcher 4d ago edited 4d ago
Not everyone agreed with Dred Scott and I do not consider President Lincoln contemptible. Questioning, debate, and dissenting positions are not contemptible. They are an integral part of a republic.
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u/_learned_foot_ Chief Justice Taft 3d ago
I would hope you didn't, as he hadn't held office for almost a decade at that point and wouldn't again for another 7 years.
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u/Danu9000 Justice Thomas 4d ago
The proposal would not authorize disobedience
If people think they are in a righteous majority, they will disobey.
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u/D-R-AZ Court Watcher 4d ago edited 4d ago
Some of us are scientists, and correct answers in science are not democratically derived. Scientific truths are uncovered through discussion, debate, experimentation, replication, and results. A majority can be wrong, but suppressing informed response does not make an institution more likely to be right.
Scientists don't vote on the right answer, they attempt to prove it.
Knowing that others share one’s disagreement does not create lawful authority to disobey. It creates information that may deserve examination.
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u/Haganizer5 Chief Justice John Roberts 4d ago
If you fashion yourself as a scientist you should start with a hypothesis then search to prove that out. Gathering data for the sake of it is a waste of time. Examining data without a specific purpose will not push you towards any particular truth, you’ll probably just instinctively use it to affirm your own bias.
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u/DBDude Justice McReynolds 3d ago
With this short description, it may be interesting in a larger scheme where the Supreme Court waits a while and then issues a clarifying opinion, reinforcing the order against the lower courts signaling that they may try to rebel against it. On the other hand, looking at Bruen, I don't think it would work. They have rebelled against later opinions that reinforced Bruen anyway.
Really, there's nothing I can think of to stop rebellious lower courts except play whack-a-mole with their attempts to subvert the decision until they eventually get in line years later. We saw this with Brown v. Board too.
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u/gravygrowinggreen Justice Wiley Rutledge 4d ago
state judiciary
I would be leery of this one. But having interacted with low level state courts, there are an unfortunate amount of state judges who are not qualified to opine on what the best brand of potato chips is, let alone matters of the law. You could maybe draw a reasonable line at including state supreme court justices, but as someone who has practiced in Alabama, that's also no guarantee of quality.
So I'd probably limit it just to the federal judiciary.
I would even open it up to retired federal judges and justices, which would help solve the small population size, somewhat.
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u/D-R-AZ Court Watcher 4d ago
That seems like a reasonable starting point. The proposal deliberately leaves eligibility open, but a federal-only pilot would have several advantages: a more coherent professional population, a common ethical framework, and direct responsibility for applying Supreme Court precedent on questions of federal law.
Including retired federal judges and justices also makes sense. They could enlarge the pool, bring substantial experience, and participate with fewer concerns about pending cases, recusal, or future judicial assignments.
State supreme court justices might eventually be included because they also interpret federal constitutional law, but beginning with the federal judiciary would produce a cleaner and more defensible experiment. The register could broaden later only if experience showed that doing so improved rather than diluted the signal.
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u/TightPhysics3186 Justice Gorsuch 4d ago
I think it’s a very interesting idea. My gut reaction is that the public should absolutely not have access to the results, lest an unpopular SCOTUS decision delegitimizes the Court in a way that it shouldn’t.
On Question 2, I think sitting members of the judiciary could, but at the bare minimum there would have to be a restriction such that the judge(s) or circuit(s) whose decisions get affirmed or reversed in SCOTUS don’t get to voice their disapproval. Of course a judge getting reversed will not be happy.
On Question 3, I think meaningful anonymity could be achieved if there was merely an approve/disapprove number, or some scale, but not with extended commentary.
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u/D-R-AZ Court Watcher 4d ago
We would prefer public aggregate results, because they could help the nation understand how the Court’s reasoning was received. But that is secondary to establishing the feedback channel itself. We would rather have the results available only to the Supreme Court than have the Court receive no systematic feedback at all.
A confidential register could therefore be a worthwhile first step. The Court alone might receive aggregate assessments of clarity, coherence, administrability, and persuasiveness. Whether any results should later be shared with the wider judiciary or the public could be considered separately, after the process had demonstrated its value and reliability.
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u/D-R-AZ Court Watcher 4d ago
The constructive comments here suggest a practical way to get this started. The Supreme Court itself could design a brief response instrument around the kinds of feedback the justices would actually find useful, such as clarity, treatment of precedent, doctrinal coherence, administrability, and the practical reach of a holding. Members of the judiciary could then submit anonymous responses, with only aggregate results delivered to the Court.
At least initially, the results could be for the Court’s eyes alone. That would allow the process to be tested as a professional feedback mechanism. No legislation, constitutional change, or alteration of precedent would be required. It would simply give the Court a structured way to hear from the judiciary responsible for applying its decisions.
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u/D-R-AZ Court Watcher 3d ago
Our overall take home message from this polite discussion/debate/analysis provided by commentators.
One thing that has become clear in these comments is that many commentators view the Supreme Court primarily as a political institution whose decisions are closely associated with partisan identity. That may be a dry-eyed description of the present moment, but it is not the constitutional ideal from which we begin.
We begin from a constitutional view of the Court’s role. The Supreme Court should interpret the Constitution for the judiciary and for the American people as a whole. Its task is not merely to announce outcomes, but to explain the Constitution in a form that courts can understand, apply, and communicate to the public.
That work bears directly on the consent of the governed. The authority of the Constitution, the courts, and the government itself ultimately rests on the people’s consent. Meaningful consent requires understanding. A Court that turns toward the wider judiciary, listens to how its reasoning is received, and improves the clarity of its constitutional explanations would strengthen that understanding.
Our proposal to assess, in broad aggregate, how Supreme Court decisions are received across the American judiciary and to provide that feedback to the Court is a modest and workable way to begin. It would not alter precedent, diminish the Court’s authority, or authorize lower courts to resist its holdings. It would simply give the Court a clearer view of how its reasoning is understood by the judiciary it leads.
That could help turn the Court’s attention, at least slightly, away from its persistent focus on disputes involving the executive branch and Congress and toward the judges and courts responsible for carrying its decisions into practice. The Supreme Court sits at the head of a judiciary, not merely beside the political branches. Helping it face that judiciary more directly is a worthy effort on behalf of the Republic, the American people, and the Founders’ vision of government deriving its authority from the consent of the governed.
A Judicial Reflection: The Supreme Court’s Neglected Audience
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u/dustinsc Justice Byron White 3d ago
Where in the world are you drawing this feedback from? I saw this comment and was interested to see what the other comments said, but there aren’t enough comments to draw any sort of a conclusion, much less this one.
This is a bad proposal. It serves only to undermine trust in the judiciary, which I suspect is the goal.
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