In explaining the process of the legal system from trial court to the Big Bench,  Eugene Volokh offered some perspective on how and why a case makes it to the Supreme Court in order to counter the misperception that the Supremes were there to straighten out injustice and bad decisions.  Error schmerror, as we lawyers say.

Orin Kerr took Eugene’s post a step further, or perhaps orthogonally, in noting that our Supreme Court Justices are expected to deal with flavors of law far afield from what they knew and practiced.

I would add another important point often lost in discussions of the Supreme Court: The Justices are generalists. They’re smart people, but they’re people, not gods. Because the Supreme Court reviews such a dizzying array of federal legal questions, the Justices spend their time on lots of pretty arcane and specific issues ranging from tax, ERISA, and bankruptcy questions to civil rights cases and commercial cases to criminal cases and jurisdictional cases. In that environment, the Justices don’t specialize much. They have a general idea of most general areas of federal law, at least after a few years on the Court, but they’re mostly generalists.

In a sense, the Justices are like most litigators. They become quasi-specialists about cases and issues because they have to be, but they’re not experts in the fields of law that they decide. When a case is on the docket, the Justices jump into the issue and learn about it. They try to figure out what is happening, and then they vote. To be sure, sometimes a Justice will come to the Court with a specialized background, and will maintain an interest in a particular field as a Justice. But that’s less common than you might think, and it’s relatively rare for a Justice to have the time to maintain that level of interest and knowledge about the field when on the Court.

This is a critical point, both from a practitioner’s perspective (don’t assume that because you are well versed in the law and see much of your argument as too obvious to be worthy of discussion that the justices will share your familiarity) as well as an institutional perspective.  We put into the 18 hands a monumental amount of authority to decide some big issues. 

Orin’s point is well taken, that nobody, even really smart lawyers, have such incredibly nuanced understandings of every niche of law to fully appreciate the significance of issues.  That the Supreme Court typically uses circuit splits as a “crutch” to decide what cases are worthy of their attention makes a bit of sense.

The problem is that it’s not good enough for those lawyers, and more importantly, those clients, who got burned by some bum decision in a more specialized or obscure area of law.  The assumption that if the law is headed off in the wrong direction, it will produce a circuit split is unreliable.  Why should circuit judges be any more capable of having such incredibly nuanced understandings of highly specialized niches than the Supremes?  They look for guidance from other circuits as well, and may be more than happy to defer to the work of some other judges in an area of law that they don’t find particularly interesting.  It’s an easy out.

Moreover, it can take years, even decades, for circuit splits to show themselves.  Is it really acceptable to litigants that a generation later, the Supremes finally figure out that the law is all screwed up and lives were lost, businesses destroyed, conduct prohibited or encouraged, wrongly?  Do we not believe that there ought to be some end goal to all this courtroom stuff that means that litigants who deserve to win end up winning?  Do we not sleep well at night believing that there is someone out there who will correct the wrongs produced by the best system ever invented?  And do we not think this might happen in our lifetime?

The fact is that some areas of law are commonly litigated, and the issues presented are both of the sort that arise regularly and of the sort that interest most judges.  Criminal law tends to be such a thing, though even then the justices often show such a naive belief in what happens on the street as opposed to the sanitized world on which their decisions are based as to defy credulity.  But what of patent law?  Or maritime?  If that wasn’t the area of practice before climbing onto the bench, what are the chances a justice will have a clue?

Perhaps the solution is in having more specialized courts to deal with more obscure or technical areas of law, where the judges will bring experience in their respective trenches to the bench and have a meaningful grasp of the nuance and significance of issues.  But this lends itself to other problems, where courts become entrenched, and the politics of the law manifests itself into judges promoting a perspective they believe to be correct rather than giving a fair hearing.  It’s hard not to have a political perspective on the law in an area where one practiced.  It’s certainly true of criminal law.

A better answer might be for the Supremes to have access to specialists in niche practices to advise on the nature of issues in areas where the justices aren’t familiar.  Putting the questions to Supreme Court clerks, kids who have experience in nothing but can reasonably anticipate bright futures and huge bonuses when they get scooped up by Biglaw, is hardly a substitute. 

What is clear, however, is that the justices aren’t supermen (and women) capable of knowing the most intimate aspect of every practice area on a constant basis.  Sadly, that’s exactly what we need of them, as the decision of the nine can make the legal world spin on its axis.