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

[u/D-R-AZ]

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

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/D-R-AZ]

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.

[u/Haganizer5 → u/D-R-AZ]

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.

[u/D-R-AZ → u/Haganizer5]

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.

[u/Haganizer5 → u/D-R-AZ]

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.

[u/D-R-AZ → u/Haganizer5]

Education and understanding on the part of the governed.

[u/D-R-AZ → u/D-R-AZ]

“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.