The Best of All Possible Worlds? A Rejoinder to Justice Liu


Justice Liu’s response to Opinions First—Argument Afterwards treats Opinions First as an attack on the court—which it is not—rather than a wellsupported proposal for reform, which is the ground I had hoped to occupy. Instead of addressing the ways out of the box the court unfortunately finds itself in post-Stevens v. Broussard (I identified several), the Liu Response chooses to deny the existence of a problem and advance post-hoc rationalizations for current practice.

Justice Liu’s claim is that forming a “preliminary” consensus through the court’s “substantial written deliberation before oral argument[,]”—consensus that culminates in what is clearly a signed draft majority opinion—enhances, rather than diminishes, the role of oral argument. This claim is grounded on his personal experience of the past two plus years on the court and his two federal court clerkships.

Although I have never sat on any court, much less a court of last resort, I cannot accept the truth of the matter asserted.

About the Author

Professor of Law, UCLA School of Law

By uclalaw