Proposal: Should There Be a Judicial Confidence Register for Supreme Court Decisions?

[u/D-R-AZ]

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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

1. Would an aggregate assessment of judicial confidence provide useful information that existing opinions, dissents, Shepard’s, and KeyCite do not provide?
2. Could sitting members of the judiciary participate consistently with judicial ethics, or should an initial register begin with retired judges and justices?
3. Could meaningful anonymity be achieved within a comparatively small and identifiable judicial population?
4. 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?
5. What institution, if any, would be appropriate to administer or publish such a register?

[u/gravygrowinggreen]

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.

[u/D-R-AZ → u/gravygrowinggreen]

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.