Academic

Brilliance & the Supreme Court

By Lawrence Solum

Over at Prawfs, Hillel Levin asks:

Of course, this question is both ambiguous and vague, because the crucial operative terms in the question are "good" and "smart."  "Good" and "smart" are both vague, because there is no bright line that distinguishes a mediocre or poor justice from a "good" one or a judge of average intelligence from a "smart" one. 

"Good" is ambiguous, because it has many different senses, and in this case, those senses are not disambiguated by context.  Supreme Court Justices can be "morally good," "legally good," "rhetorically good," "politically good," and so on. 

"Smart" is similarly ambiguous, because the intellectual virtues are multidimensional.  To begin, there is the obvious point that "intelligence" (or "smartness" in the "IQ" sense is itself multidimensional: we call people smart for different reasons in different contexts.  More fundamentally, "smart' fails to disambiguate the two intellectual virtues most relevant to judging--theoretical and practical wisdom.

The first of the intellectual virtues relevant to being a Supreme Court Justice is "theoretical wisdom" or Sophia--this is the kind of intellectual capacity that would enable a judge to comprehend a complex legal rule. (My favorite example is the structure of Eleventh Amendment doctrine--something that is so complex that many judges who write opinions and scholars who write articles routinely make serious mistakes.)  Theoretical wisdom may also be relevant to the capacity to understand complex fact situations--a skill that actually is required in a variety of cases in which the procedural posture requires an appellate court to assess the adequacy of the evidence in the record.

The second of the intellectual virtues relevant to judging is "practical wisdom" or "Phronesis."  Judges who are practically wise are able to see what is legally and morally salient about a case: Karl Llewellyn described this capacity as "situation sense."  A judge who lacks practical wisdom may propose a rule that is unworkable when trial court judges attempt to apply it, or that fails to provide adequate guidance to primary actors.  Similarly, practical wisdom is the virtue that enables judges to grasp the salient effects of legal rules: it is the capacity that gives judges a nose for unintended consequences and the means to their avoidance.

There is another problem with Levin's question--a problem which concerns the collaborative nature of the work of the Supreme Court.  Supreme Court Justices collaborate with law clerks and with other Justices.  Law clerks are likely to be smart--they are selected in part on the basis of their intellectual abilities are measured by law school records and recommendations.  Although it would be possible for a justice to have one or two dull clerks, a full complement of four seems rather unlikely.  Clerks can compensate for the weaknesses of the judges for whom they work to a limited degree: at the level of legal detail, a diligent clerk can correct mistakes regarding the structure of a legal doctrine or the meaning of a legal text.  But judicial clerks have only a limited capacity to compensate for a Justice who lacks theoretical and practical wisdom.  First, even brilliant clerks are unlikely to be learned in the law: law students actually know very little about the subjects they have studied and nothing at all about huge swaths of the law.  Second, law clerks are unlikely to have developed practical wisdom--they simply lack a sufficient base of life experience.  This fact about phronesis was the basis of Aristotle's remark that there are no moral prodigies.  And finally, law clerks do not attend conference: they cannot assist their justice if the discussion of a case if the discussion in conference goes in an unanticipated direction that might require a Justice to revise her opinion about the decision of the case.

The Justices also collaborate with one another in complex ways.  Opinions are assigned, and a Justice who lacked the intellectual virtues could be assigned opinions that were less challenging.  A justice who knew her own limitations could defer to other members of the Court who she admired and respected--following their lead in conference and seeking their counsel on difficult and complex issues.  It seems at least plausible that the Supreme Court could accommodate a justice or two who lacked the intellectual virtues: Justices who aren't "smart" could be "carried" by their colleagues, at least to some extent.

Even given the collaborative nature of judicial work, the presence of even a single weak justice could do damage to the work of the Court.  As I write, I am thinking of an opinion on an issue with which I am very familiar written by a current member of the Court that was simply incompetent--causing turmoil in the law and substantial frustration in the lower courts.  It was a difficult issue, and my guess is that it was assigned to a law clerk who had almost no exposure to the issue as a student.  Of course, there are many possible reasons for a badly drafted opinion making it into the United States Reports, but in this case, one plausible explanation is that the Justice assigned the opinion did not understand the legal issue and the structure of the doctrine, and hence could not assist the clerk.  For whatever reason (the issue was not a "hot button" issue, perhaps the badly drafted opinion came late in the term), other members of the Court did not step in.  The result was bad law.

Do Supreme Court Justices need to be "smart" to be "good"?  I don't know what that question means.  What I do know is that the Supreme Court would function badly if most of its members lacked the intellectual virtues.  A Court of dumb and foolish Justices would do serious harm to the law.

And what I strongly suspect is that the Court will function best if some of the Justices are truly brilliant--possessed of a very high degree of both theoretical and practical wisdom.

We tend to focus our evaluations of the Court on the bottom-line in hot button cases, and those cases are defined in part by the underdeterminacy of the law.  In cases like that, many of us care most about the way the Justices vote.  And therefore, we judge them by their values and not by their virtue.  But the Court does more than decide a few hot button cases a year and a few transformational cases in each quarter-century.  The Supreme Court is charged with care of the woof and warp of federal law--with creating a coherent and workable set of legal doctrines that affect the lives of ordinary people and the functioning of institutions in myriad ways.  That task requires intelligence.

Full post as published by Legal Theory Blog on May 28, 2009 (boomark / email).