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Thursday, October 12, 2006

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.

Posted by amsiegel on October 12, 2006 at 10:50 AM in Constitutional thoughts | Permalink


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Tracked on Oct 15, 2006 10:28:58 PM


Looks to me, Orin, like your "observations" are similarly lacking in specifcity.

Posted by: some kid | Oct 13, 2006 7:01:24 PM

Thanks for responding, Andrew. I guess I would be interested in hearing why you think Roberts didn't have his head around the problem. Given that the post is about his learning curve, it would be helpful to know what specific questions you have in mind that you think show it.

(I guess I'm skeptical in part because Roberts has been asking extremely sharp questions from his first argument on; I would say that he is probably the court's sharpest questioner these days, based mostly on transcripts I have read.)

Posted by: Orin Kerr | Oct 12, 2006 10:47:45 PM

I'm curious as to why dll111 leaves Cardozo off her/his list. Granted, Cardozo's more impressive work was done on the state bench, but he's a high wattage legal mind. More so than some of the others on the list.

Also, I apologize to amsiegel for highjacking this thread, but it seemed like others had already diverted this discussion to another track, and I'm just following along.

Posted by: Andrew | Oct 12, 2006 8:06:25 PM

Douglas, Scalia, Holmes, Story, John Marshall, Jackson, Stevens, Rehnquist, Taney, Harlan II. In no order.

Posted by: dll111 | Oct 12, 2006 5:21:39 PM

Orin: I certainly didn't mean to imply that disagreement with decisions equates with a lack of understanding. Nor have I read the transcript in detail. But based on a quick skimming of the transcript and the online comments of a number of folks who attended the argument (including the usually reliable gang at SCOTUSBlog) my preliminary conclusion is that the Chief Justice has spent very little time getting his head around (1) the complicated policy arguments related to the Apprendi/Blakely issues; (2) the particular constitutional infirmity identified in Blakely/Booker (in contrast with Apprendi); or (3) the mechanism the Court developed for obviating that problem in Booker. (On the last question, it is hard to fault him as the federal courts of appeals seem to be either collectively clueless or willfully obstructionist in implementing Booker.)

Posted by: Andrew Siegel | Oct 12, 2006 2:17:49 PM

I'm curious who you think are the ten Justices with the most "raw candlepower" in the history of the Court, even if they turned out to be disappointments as jurists. Off the top of my head I'm thinking of Brandeis, Holmes, maybe Frankfurter. But I'm only a 2L so I'm curious what others think.

Posted by: student | Oct 12, 2006 1:23:08 PM

I found the comment at SL&P about Roberts' "superficial understanding" rather silly, actually. Roberts doesn't have a superficial understanding: he just apparently doesn't find the Blakely revolution persuasive, so he isn't convinced by the arguments of people who likely Blakely. I hope we're not at a stage when someone who disagrees with us must just have a "learning curve" until they see that we are right. If that's the case, I kind of hope that Chief Justice Roberts is a very slow learner.

Posted by: Orin Kerr | Oct 12, 2006 12:38:04 PM

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