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Supreme Court Expertise:

Earlier today, I commented that I although I thought that the holding in the Supreme Court's opinion in Marrama was correct, the opinions suffered from a lack of consideration of the policies and legislative context of the statutory provisions in question in the case. If you buy my argument about the relevance of policy and historical legislative context in illuminating the plain language of the statute (a big "if" I recognize), I think this leads directly to some reflection on the nature of the Supreme Court and its expertise (a question that was anticipated by one of the Commenters in the earlier Comment thread as well).

Perhaps this opinion style was intentional and the Justices believe that this is the best way to address a question such as this. But I fear that an alternative hypothesis presents itself--the Supreme Court today lacks the expertise to fully understand the full policy and historical context that arises in a particular bankruptcy case like Marrama.

I think few people would say that the Supreme Court could do its job well, or perhaps even competently, if none of its members had substantial expertise in constitutional law or criminal law. It is not clear to my why the same concern doesn't apply to matters of commercial law.

Several years ago, a Supreme Court Justice spoke here at GMU Law, and a student asked what advice the Justice had for law students. The Justice replied, "Take as many classes in as wide a variety of areas as possible. For instance, I never took bankruptcy in law school, and to this day I don't understand the policies and concepts that underlie the Bankruptcy Code." This statement seems that it could be applied to any of the sitting Justices.

Justices seem to be drawn from a relatively narrow pool of lawyers with particular expertise developed in either the Executive Branch, appellate practice, or both (as with Chief Justice Roberts). Experience in the Executive Branch rarely exposes one to very different questions from those that arise in bankruptcy, securities, or the like. As for appellate lawyers, although they get exposed to many varied areas of law, their exposure is piecemeal and at the level of the law, typically rather than developing a deep expertise in any substantive field of law, such as bankruptcy. Breyer and Scalia have some expertise in economics (the former academics), but it is not clear that this necessarily extends to commercial law more generally.

So, while it is possible that the Justices sincerely believe that these sorts of opinions are the best way to address questions that arise under the Bankruptcy Code, it seems equally plausible to me that they feel like they have to address the questions in this manner because of a lack of expertise to address them in a deeper way. Perhaps in the long run that is good, but at first glance I'm not persuaded.

As a long term question, therefore, I think that the opinions Marrama tend to reinforce my previously-expressed concern about the lack of true commercial law expertise on the Supreme Court today and the hope that will be considered in future appointments to the Court (and perhaps when Justices consider clerks as well). In the past, Justices such as Lewis Powell filled this role on issues like securities law (as Adam Pritchard has observed), but I don't see anyone like that today on the Court

anonVCfan:

"the opinions suffered from a lack of consideration of the policies and legislative context of the statutory provisions in question in the case . . . .
while it is possible that the Justices sincerely believe that these sorts of opinions are the best way to address questions that arise under the Bankruptcy Code, it seems equally plausible to me that they feel like they have to address the questions in this manner because of a lack of expertise to address them in a deeper way."


What's the alternative, though? Judges can either (1) attempt to master all of the literature on bankruptcy law and try to make bankruptcy policy under the guise of statutory interpretation (or at least within the bounds of legitimate discretion in statutory interpretation), or (2) write opinions more like Justice Alito's, which interpret statutes using mostly logic.

To my mind, courts are ill-equipped to do (1), but (2) is precisely what courts are good at. Very few judges are good at sophisticated economic or policy analysis--as far as I know, only Posner and Easterbrook are good at doing this sort of thing on a regular basis, and Posner is sometimes criticized as being sloppy.

As Judge Friendly noted a while back:

[W]hereas it was not unreasonable to expect a judge to be truly learned in a body of law that Blackstone compressed into 2400 pages, it is altogether absurd to expect any single judge to vie with an assemblage of law professors in the gamut of subjects, ranging from accounting, administrative law and admiralty to water rights, wills and world law, that may come before his court.

Friendly, Reactions of a Lawyer--Newly Become Judge, 71 Yale L.J. 218, 220 (1961).

In antitrust, Congress wrote open-ended statutes and trusted the courts to fill in the gaps, which they have often done with economic analysis. In areas like bankruptcy and the tax code, however, Congress has made more rules than standards, and it seems to me to be inappropriate to give policy or purpose much of a role in the interpretive process where the statutory language is fairly clear.
2.22.2007 3:52pm
Justin (mail):
I think this is why the Supreme Court's new found interest in the Federal Circuit is actually somewhat concerning, and that it is a positive development that a former Federal Circuit clerk obtained a clerkship with Ginsburg.

Other easier, or perhaps parrallel, solutions would

1) to either create (either a permanent or rotating) group of "issues" clerks who would be able to brief the whole Court on various legal issues. If such clerks worked *through* the clerks, there would be sufficient checks and balances, I believe, against ideological imbalances from a central clerk (much like per se clerks work on some of the Circuits).

2) to allow, and encourage, the Justices to hire consultants who can help them on a case-by-case basis actively, rather than just through the passive Amicus Curae function.
2.22.2007 3:53pm
James Dillon (mail):
This is an astute observation. During Harriet Miers's short-lived SCOTUS nomination, I remember hearing an often-repeated criticism that, as a "corporate" lawyer, her relative lack of expertise on constitutional law issues rendered her unfit for the Court. I was opposed to Miers's nomiation, but the assumptions that 1) expertise in commercial law would be of marginal utility to a Supreme Court Justice, whereas 2) expertise in constitutional law is of paramount importance, struck me at the time as misguided. A high degree of institutional expertise on constitutional matters is obviously essential to the function of the Court, but not every important legal issue that comes before it can be resolved by reference to the Constitution. It seems to me that we have enough constitutional scholars on the Court already, and that a Justice with a more extensive familiarity with commercial law (including the arcane issues of bankruptcy that few attorneys outside of the specialized bankruptcy bar have any significant knowledge of) would benefit the Court, and the nation, a great deal.
2.22.2007 3:59pm
anonVCfan:
This question arises in a lot of fields, no? How conversant in moral philosophy do judges need to be to apply the criminal law, how conversant in science/economics do they need to be to apply the patent law, how much do they need to know about how the insurance industry works to apply ERISA, etc.

It seems to me that too much concern about a lack of expertise in judges misconceives what judges are supposed to do. If we have bad bankruptcy policy, the economists should complain to Congress. If we have bad environmental policy, the environmental scientists should complain to EPA and Congress. In the courts, it's garbage in, garbage out, and if a case reveals the "garbage" aspect of Congressional or regulatory policy (as the Marrama case would have had it come out the other way), then Congress or the agency can fix it.
2.22.2007 4:04pm
anonVCfan:
I may be confusing legal expertise with policy expertise. I'm not entirely sure which one Prof. Zywicki is calling for, but I suspect it's both.
2.22.2007 4:54pm
Loki13 (mail):
James,

I think the Harriet Miers example is not well-thought out. There were many problems with her nomination beyond that. For example, if you wanted a great corporate lawyer who was not well-versed in ConLaw, was Harriet Miers one of the 100 best Coporate Lawyers in the country? 1000 best? 10000 best?

More importantly, for the Supreme Court you should be able to get someone who has a modicum of understanding of Constituional issues as well as corporate law. The two areas are not mutually exclusive. I think that the problem highlighted here is that all the justices don't have any corporate background.
2.22.2007 5:30pm
Alan Gunn (mail):
Their tax opinions are at least as bad; we'd be better off having circuit splits in tax decided by coin flips. They'd get about the same number right and they wouldn't generate opinions that mess up the law for years. I've never known a lawyer in any field other than constitutional law or federal procedure who felt anything but disdain for the Court's decisions in that field.

I've long suspected that some of the current academic enthusiasm for literalism stems from an awareness that non-specialist courts can't really know enough about particular fields to decide cases on the merits. (In this respect, the Supreme Court is probably even worse than most of the Courts of Appeals.) And, while I haven't done anything like a formal count, it seems to me that the great majority of academics writing about "statutory interpretation" today are people whose specialties do not involve day-to-day work with statutes. Which, if true, may account for the sense I get that much of that literature is a search for ways to decide statutory issues without taking the trouble of learning about the underlying subject matter. (It may also have something to do with the curious fact that legal academics are disproportionately people who were litigators in practice.)
2.22.2007 6:07pm
Waldensian (mail):

I've never known a lawyer in any field other than constitutional law or federal procedure who felt anything but disdain for the Court's decisions in that field.

They do a pretty good job on antitrust.
2.22.2007 9:48pm
andy (mail) (www):
My response is just the opposite. Seems like they tried to learn too much about "underlying" policies in Marrama.

The same problem occurs in the tax area with alarming frequency. Courts should apply consistnet theories of statutory interpretation rather than try to develop a unique understanding of some underlying or magical purpose that guides the construction of the Bankrupcty Act or the Internal Revenue Code.

Regarding Alan Gunn's comment

it seems to me that the great majority of academics writing about "statutory interpretation" today are people whose specialties do not involve day-to-day work with statutes.



I read a lot of scholarship on statutory interpretation and agree 100% with this. Statutes that intersect/overlap/contradict tend to bore most statutory interpretation scholars, it seems. Rather, the scholarship tends to be geared towards "what's a vehicle?" or "what's 'marriage'?", etc. There is not enough good literature on statutory interpretation issues like those raised in Marrama.

However, specialists are equally to blame. Too often articles and treatises shape their analysis around the correct "policy" result. Rarely do I see tax articles resolve issues around some principled theory of statutory interpretation; rather, the goal is always to fit the answer to some unenacted "purpose" of the Internal Revene Code.

I guess the problem is that bankruptcy law, erisa, tax, etc. bore the heck out of statutory interpretation scholars, but statutory interpretation bores the heck out of bankruptcy, erisa and tax scholars. Very unfortunate.
2.22.2007 11:06pm
Redman:
I recall that Justice Douglas generally concurred in bankruptcy opinions and stated that the justices on the court lacked the proper expertise to decide cases in that area of the law.
2.22.2007 11:12pm
PDXLawyer (mail):
Right on, AnonVCfan.

It is hopeless to expect judges of courts of general (or even very broad) jurisdiction to have a deep understanding of the wide variety of areas of law (or specialized industries) which come before them. Anyway, the SC's role is (or, at least, should be) an institutional one, rather than that of a policymaker. Unless and until a statute impinges on the Constitution it should be left alone. That's why Eldred v. Ashcroft was right in upholding a copyright law which was apparently enacted through a combination of mass bribery and mass stupidity in Congress.

That is also why I like the literalist school of statutory interpretation. Although the Supreme Court may have armies of very smart clerks and months and months to come up with a statutory interpretation, practicing lawyers don't. Our clients (with few exceptions) can't afford to pay us to review legislative history when their question is "can the bank really debit my account for this forged $10,000 check?"

Of course it is easier for Congress, from a political standpoint, to *get tough* on the easy cases, enact vague "safe harbor" provisions, and leave the hard work of line drawing to somebody else. It is certainly more faithful to the legislative will for the courts to cooperate in this, than to use formulatic "plain meaning" analysis which presumes counterfactually that the political branches think deeply about the meaning of what they are doing. However, in the long run, having courts go outside of "plain meaning" has the unfortunate effect of shifting the legislative power (in addition to making the law much more opaque and harder to apply).

As a commercial lawyer, the last thing I want is to have a Supreme Court which has policy ideas about commercial law.
2.22.2007 11:30pm
James Dillon (mail):
Loki,

I wasn't suggesting that Harriet Miers was a good nominee-- as I noted in my earlier post, I opposed her nomination, largely because I thought she was, in fact, not qualified. My point was that one of the criticisms of her nomination-- that a corporate lawyer with more experience in commercial than constitutional matters is ipso facto unqualified for the Supreme Court-- strikes me as misguided. You're right, of course, that commercial expertise and constitutional expertise are not mutually exclusive, but my point, and, I think, part of Todd's point, is that emphasis of the latter to the exclusion of the former (or to the exclusion of any number of other specialized fields of law-- patent law comes to mind as a prime example) seems misguided.
2.22.2007 11:45pm
Lev:

As a commercial lawyer, the last thing I want is to have a Supreme Court which has policy ideas about commercial law.


Isn't one of the criticisms of the court that it has too many policy ideas? And that when it gets those policy ideas it should read a statute or take a nap?
2.23.2007 12:15am
JB:
Harriet Miers is certainly not one of the top 10^n commercial lawyers, for any low value of n, but someone who is, for say n<3, would probably make a very good supreme court nominee. In fact, I'd like to see the SC staffed with justices with a wide variety of secondary skillsets, and I think ensuring this would be a better use of the Senate's time than nattering over ideology.
2.23.2007 1:28am
Loki13 (mail):
James,

My apologies for missing the central point of your post. I would agree with you (and Todd) that the SCt could use a Justice with a commercial background. I think that the problem is not just a lack of commercial lawyers per se, it is a lack of diversity as a whole on the SCt, and I mean this not from the typical racial/gender diversity grounds, but from the diversity of legal backgrounds. While Roberts and Alito (to use the two latest examples) are both more than qualified, I wonder if they brought anything new to the table that was not already well represented on the SCt.

On a borader plane, I think it is incredibly important that a Supreme Ct. nominee have some familiarity with ConLaw... while it is not a Constitutional Court, per se, it is the final arbiter of Constitutional issues. But I believe that we have narrowed the talent basse of the court to such an extent in modern times that it is unlikely that we will get the justices diverse backgrounds as we used to. To use an example- what are the odds of another O'Connor being appointed? Whether or not you agree with her jurisprudence, her background in state legislatures provided her with a viewpoint that is lacking among current justices.
2.23.2007 10:11am