Learning Curves at the Supreme Court

Yesterday's oral arguments at the Supreme Court are the first of the young term to excite much interest.  Though much can be said about the substance of the arguments--particularly Cunningham v. California, the latest in the Apprendi-Blakely-Booker line of cases--what I found most interesting about the arguments was the degree to which they reminded us of the steepness of the learning curves in the early years of the Roberts Court.

After a decade-long period in which the membership of the Court remained static, last year's two new appointees have rippled the waters.  Before things settle down to predictability at the Court, three distinct groups of individuals are going to have to do some quick studying.

Beginning with the most obvious, litigants and court-watchers are going to have to pay careful attention to the complex matrix of attitudes and jurisprudential views that the new Justices bring to the Court.  For most of the last decade, most cases raised issues in which all of the current Justices had marked out a general jurisprudence, allowing litigators to pitch their arguments to predictable swing justices with great precision.  While we have a general sense of the direction of the new Justices' jurisprudence, we have a lot of gaps to fill in.  Yesterday's argument presented a classic example, as neither Alito nor Roberts had much of a record on the Apprendi line of cases, a set of decisions that split the Court's conservatives.

Second, the holdover Justices have a lot of learning to do about their new colleagues.  Obviously, they too need to learn the views and potential voting patterns of their new brethren.  But it goes beyond that.  As scholars such as Tom Merrill have argued, decisions on a relatively collegial nine-member Court often owe a great deal to the nitty-gritty of the interpersonal dynamics on the Court.  The process of feeling each other out that is going on in Washington involves not only discerning the views of the new folks, but also their personalities, their work habits, their receptivity to criticism, the strength of their various preferences, etc.  Bringing the new siblings onto the Court will change the family dynamics in ways that are hard to predict but will have substantial substantive consequences.

Finally, if yesterday is any indication, the new Justices themselves have a great deal of learning to do.  Because we have such an experienced set of Justices, we often forget the difficult intellectual labor involved in mastering the diverse areas of the law that the Court confronts.  While an occasional tax or intellectual property case revealed a embarrassing gap in the Court's information base, the Justices of the Rehnquist Court generally displayed an impressive grasp of the legal universe.  As one commenter notes over at the Sentencing Blog, one of the most surprising things about yesterday's argument was the superficial understanding of the Apprendi cases reflected in the Chief Justice's questions.  In terms of raw candlepower, John Roberts is almost certainly one of the ten smartest people ever to sit on the Supreme Court.  Yesterday's oral argument is a nice reminder, however, that the level of mastery of background law with which William Rehnquist and John Paul Stevens long amazed their clerks is the product not only of superior intellectual skills but also of years of hard work and experience.