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