Supreme Court Justices are Generalists

In his post below, Eugene writes:

[T]he supreme courts generally agree to hear only those cases that they see as giving them the most likely law-clarifying bang for their buck. Thus, if you can show the U.S. Supreme Court that there is a disagreement among federal appellate courts or state supreme courts (a so-called “circuit split” or “split among the state supreme courts”), the Justices will be more inclined to hear your case. The disagreement shows that there’s probably some need for clarifying the law. It’s unlikely that the law will become clearer without the U.S. Supreme Court’s involvement. And the presence of federal appellate or state supreme court opinions going both ways — often several going in each direction — may help the Justices think through the issue.

But if there is no split among the federal circuits or state supreme courts, the likely value of the U.S. Supreme Court’s considering the case becomes a lot less; among other things, the state supreme court might well step in and fix the legal problem itself in a future case (and it turns out that the state supreme court is indeed actually likely to step in, in this very case). All this of course means that injustices in particular cases often won’t be corrected, and unjust rules will often persist longer than one might like. But remember that in our system, the state supreme courts’ job is not to correct every injustice, or even instantly fix every unjust legal rule. It is to use their limited resources to fix those legal problems that seem most pressing.

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 has a lot of important consequences for the role of the Supreme Court. For example, I think it explains why the Justices rely so heavily on lower court splits to decide what cases to review. Experts can easily spot errors in lower court cases, and they have a sense of what lower-court developments need review. But generalists can’t do that. They just don’t know enough about the area of law to say without taking a closer look. In those circumstances, lower court disagreement is a good proxy for error and confusion to know what cases to review. If a lower court goes seriously astray or the law is very unclear on an important and recurring issue, it’s reasonably likely that another lower court will decline to follow suit. A split emerges, and the Justices can rely on the split as a proxy for what they want to review without having expert knowledge themselves.