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Tuesday, May 26, 2009

How Smart Do You Really Have To Be?

Note: I have edited the title of the post to better reflect its intent and content. --HYL

Okay, so I was a little off.  Stunningly wrong, actually.  This is why they don't pay me the big bucks.  Then again, people pick the Cubs to win the World Series every year and still get paid the big bucks.

I want to ask the prawfs community a question. 

We have already seen a lot of punditry on whether Judge Sotomayor has the intellectual chops necessary to be a good Supreme Court Justice, and we can expect to see much more.  (As I argued in my previous post, I think she obviously does.)

Lurking in the background of this debate is an unstated assumption that being a Supreme Court Justice is an extremely difficult job that requires intellectual capabilities that only a few of even those most obviously qualified possess.

My question is simple: how smart do you really have to be to be a good Supreme Court Justice?  And, as a follow-up, exactly what is it about Supreme Court judging that requires this level of brilliance?

Posted by Hillel Levin on May 26, 2009 at 05:44 PM in Law and Politics | Permalink


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The point Hillel Levin is making is almost identical to one made by Malcolm Gladwell in his recent book Outliers.

"Smart," as used in the sense that Levin and Gladwell and most participants in discussions like this, basically means a single dimensional IQ concept. While different parts of IQ tests don't measure precisely the same things, the whole point of the concept is to statistically identify the common factor that psychologists call "g" which causes all sorts of academic tests to be highly correlated. Gladwell expressly argues, and Levin considers the possibility, that "g" has decreasing marginal utility, or a threshold, above which being more "brilliant" does not allow one to do one's job better.

This may be particularly true in the case of the U.S. Supreme Court which is a far less complex environment than judging in a trial court. The case load upon which substantive ruling are required is much smaller (typically 90 a year), the issues presented are typically well defined and narrow and small in number for each case, the resolution on the merits is often a yes or no or multiple choice question, there is typically a reasoned decision below to review, the number of binding precedents is typicaly orders of magnitude smaller since lower court decisions aren't binding, a larger share of the opinions are written by someone else because there are nine judges, rather than seven or three or one handling each case, and the quality and quantity of the help from law clerks and advocates is better. Lower court judges have much more elaborate and multifactored issues involving a wide array of facts and must decide which ones are important.

SCOTUS decisions are important to get right, but rarely complex. The certiorari process has typically already stripped the complexity out of the case. While it is true that a poorly decided case, or a poorly written decision at the SCOTUS level can really muck things up, there are less moving parts to go wrong than in a typical court of appeals or trial court case. Often, at the SCOTUS level, any resolution of an issue is good, so long as an issue is resolved and creates a clear rule of the road.

The question "what is it about Supreme Court judging that requires this level of brilliance?" is rhetorical. The answer may very well be, "nothing." Indeed, the answer may be that at the Supreme Court level, having substantive good policy preferences may matter more than technical correctness. The notion of California Supreme Court Chief Justice Roger John Traynor that he relaxed a great deal as a Justice after discovering that all he needed to do was win over a majority of the justices to reach definitionally correct ruling on the law comes to mind. (Then again, there is strong circumstantial evidence that Justice Traynor was one of the most educated, highest IQ judges in history, suggesting that what requires brilliance in the job is not legal competence, but the confidence and knowledge in policy areas outside strict legal analysis to make good substantive law despite the precedents involved, rather than because of them.)

"Good," as used in this sense, basically means having success in causing the law to be better as a result of the judge's efforts, and is ill defined in part because it is not a consensus matter. The inquiry intertwines the question of "what is good" with the question of "what is important to being good," in the hope that consensus answers about the latter point may illuminate "what is good?"

Gladwell's argument is that the main factors beyond IQ that matter once a threshold is met are a willingness to do massive amounts of "meaningful work" and social skills (comparing Oppenheimer who had social skills with a little known child prodigy who lacked them). Thus, Gladwell might suggest that a Justice who stays extra hours working alongside his clerks in chambers and knows how to win over fellow justices, might be the best.

An example of the latter which was thrown around in this particular appointment was the importance of a judge's ability to sway Justice Kennedy, the Court's perennial swing vote.

The "empathy" factor that the President has discussed is likewise considered by most people discussing the issue to be a "beyond smarts" matter. "Empathy" is about being attuned to the impact of a result, and caring about policy outcomes, again pointing to the notion that the right political preferences relative to the current leanings of the court, may matter more to getting the right result in terms of precedent or some legal formalist standard.

Also, with regard to Mayson Lancaster's May 28, 2009 12:53:30 post, it is worth noting that “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Lochner v. New York, 198 U.S. 45 (1905) (Justice Holmes, dissenting) referencing Herbert Spenser, Social Statics (1852).

Posted by: ohwilleke | May 29, 2009 12:25:24 AM

Bruce, the reason for this apparent logical disconnect is that, to me, asking how smart a Supreme Court justice "has to be" is kind of like asking "how fast you have to be to be a good Decathlete." The answer is, of course, as fast as possible, all else being equal, but there is no fixed "have to be" point. Asking whether Supreme Court judging is easy or hard implies that there is some absolute benchmark, a pass-fail point, that is easy or hard to reach. I contest that assumption. Rather, I think that the quality of judging is relative, so it is always possible to do relatively better or worse. It is meaningless to ask whether it is easy or hard to reach a goal if there is no fixed goal. The second point is that I think more brilliance always helps achieve a relatively better result, but, like speed in a decathlon, it is traded-off with other factors. With both these assumptions, there is just no natural "cut-off" point for the amount of speed we want in a decathlete or the amount of brilliance we want in a Supreme Court judge; nor any ability to say whether it is easy or hard to achieve it.

Posted by: TJ | May 28, 2009 5:12:32 PM

The title of this post seems to indicate that being a Supreme Court justice is easy. But the comments are all about whether intelligence correlates with judicial quality all the way up or whether it plateaus at some point. There's a bit of a disconnect there, I think.

Posted by: Bruce Boyden | May 28, 2009 1:22:06 PM

Hillel, I don't think brilliance is one of those things it "necessarily" takes to be a Supreme Court justice, just like brilliance is not one of those things it necessarily takes to be president or CEO. But all else being equal, it probably helps. Like Larry, I am puzzled by your suggestion that, above a certain threshold, it provides no help at all. Sure, diminishing marginal returns may well set in, so that other qualities becomes more important, but why no help at all?

To be sure, all else is not equal, a brilliant candidate probably must be traded off against a slightly less brilliant candidate who has good people skills, or the right political connections, or whatever. But I think it obvious enough that every incremental bit of smarts -- vaguely defined but probably including analytical reasoning and practical wisdom -- helps with the job (again, all else being equal); and the job is important enough that even a little bit of improved performance is worth striving for.

Posted by: TJ | May 28, 2009 11:42:07 AM

I've updated my post in response to Hillel's remarks.

Posted by: Lawrence Solum | May 28, 2009 10:05:29 AM

I think Larry Solum's description of legal brilliance is quite interesting. I also think, unfortunately, that it has little in common with how the term is being used in our current debate. "Brilliance" in the current debate seems to be being equated with an encyclopedic knowledge of the law and the ability to toss off a clever quip. It also, much too often, seems to include a rigid way of looking at issues that is proudly immune to what Prof. Solum refers to as "practical wisdom".

Posted by: Lori | May 28, 2009 9:10:47 AM


Thanks for your comments. I hope that our readers take the time to read them.

I don't think I really disagree with you, but I think we are about different things. So let me clarify some points.

1. Obviously, "smart" and "good" are vague terms. As for "good," I acknowledged the vagueness in my previous post on the subject, though should have noted it as well here. As for "smart" and "brilliant," of course I mean whatever those who are talking about this mean.

2. And I do NOT think they mean what you do.

3. As I have said, I think that there is obviously a very high bar for the Supreme Court, and anyone in the running has to display a very high level of intelligence and wisdom. But once that minimum threshold is met, it isn't at all clear to me that any additional level of "smarts" (whatever we mean by that) is what makes a judge a "good one" (whatever we mean by that).

Posted by: Hillel Y. Levin | May 28, 2009 8:49:57 AM

I've attempted an answer to Prof. Hillel's question:

Posted by: Lawrence Solum | May 28, 2009 7:47:46 AM

I think that brilliance (of the academic, intellectually gymnastic sort) is probably overrated - especially in those cases where it leads the possessor to stop hearing what someone is saying, or to mishear it in a way that confirms their beliefs. On the other hand, brilliance, in the sense of being able to shine a bright intellectual light on a dispute, that illuminates the core issues of a case, and doesn't resort to fancy rhetoric to come to a predetermined conclusion, is invaluable.

Much of the noise over Judge Sotomayor's nomination reminds me of a favorite quotation:

"There is a principle which is a bar against all information, which is proof against all arguments and which cannot fail to keep a man in everlasting ignorance-- that principle is contempt prior to investigation" - Herbert Spencer

Posted by: Mayson Lancaster | May 28, 2009 12:53:30 AM


Well, that's just it!

What is the evidence that stunning brilliance "ups the odds" of making someone an outstanding justice? That is, beyond a certain (very high) threshold of intelligence, does being "stunningly brilliant" really--and "certainly" up the odds?

I can think of lots of qualities that an excellent judge should or could have, and I'm just not convinced that stunning brilliance plays much of a role.

Posted by: Hillel Y. Levin | May 27, 2009 10:06:23 PM

I think the question posed is not a particularly relevant one, and certainly not an interesting one. It basically ask what's the minimum necessary to get by and be mediocre. I would assume we are striving to obtain outstanding justices. For this, being stunningly brilliant certainly ups the odds of getting someone of that caliber.

Posted by: Laura Victoria | May 27, 2009 7:56:33 PM

I think Hillel raises an interesting point here. The focus on "brilliance" and stellar legal credentials is a surprisingly recent development. Until relatively recently, it was much, much more common to appoint justices who had extensive non-legal experience - most notably former elected officials. While these men were usually graduates of top law schools, their main credential rarely was that they were considered the best legal minds of their eras.

I suspect that the current emphasis on a legal "brilliance" has many causes, but the most interesting of them to me is the need – today - to shelter nominees from political criticism in an era in which the audience needing to be "sold" on the nominee is much broader and in some ways less sophisticated than it used to be.

When confirmations were more or less 'back room deals' the process was more openly political (and geographical). Everyone knew that, and there wasn't much of a need to pretend otherwise. That is no longer the case. TV, 24 hour "news" and an enhanced sense of democratic engagement with the process - not to mention the direct election of senators - have changed the audience and thus created the need (or perceived need) to point to "objective" rather than political criteria to explain why a particular nominee is a good choice. To be clear, I think this more vigorous public engagement is good, but it could be much, much better if it was more focused on constitutional consequences and less on silly debates about “activists” and “umpires”.

Posted by: Lori | May 27, 2009 9:54:21 AM


I don't think I said that it doesn't take much to be a good Supreme Court Justice. I think it takes a LOT. I just don't think "brilliance" is one of the things it necessarily takes.

Posted by: Hillel Y. Levin | May 27, 2009 6:23:04 AM

Hillel, in one sense, you are right that it doesn't take much to be a "good" Supreme Court justice. But that is the same sense in which it doesn't take much to be a "good" CEO or president. You can delegate much of your work, and many things are beyond your control anyway, so the chance that a little extra brilliance will have an effect is really quite small. But the consequences are more dramatic: a bad decision by a district judge affects one case; a bad decision by a court of appeals judge affects maybe one circuit (but could be reversed); while a bad decision by the Supreme Court affects the whole country and is hard to reverse. Performance is all relative, and every little bit of improvement helps.

Posted by: TJ | May 27, 2009 12:18:22 AM

Having not read the other posts leading up to this one, I feel that you are trying to suggest a comparative analysis, i.e. how much smarter is the average Supreme Court Justice than the average Federal Judge, State Judge, County Judge, and so on. Part of this analysis is each group being granted a different level of support, different set of expectations, and different workload in general.

Unfortunately is a simple jump to question where law school professors fit in the ranking stepladder of judges I mention above. Assuming (as you seem to) that being a Supreme Court Judge is not that difficult (compared to what?) seems to manifests a disrespect for the highest bench that I cannot blame people for reacting vehemently to.

But here's a less trivial issue: regardless of whether it's a hard job (and I agree, it is not really a hard one when compared to most other judicial posts) is not the real issue one of trusting a position of this magnitude and duration to someone of peerless intellectual capacity?

I want to digress and discuss whether defying political expectations (like Souter did) is a mark of intellectualism or not, but I think I've muddied the waters enough.

Posted by: jps | May 26, 2009 11:27:22 PM

To be a law student, for starters, you have to be pretty ignorant of math and science and certainly without a BS degree in any scientific discipline.

It is best if you have no idea of the rules of chess, much less play the game well.

If you aspire to a place in SCOTUS, you should have an undergraduate degree in something wishy-washy, like English, Literature, International Affairs or Government. A BA in Economics is good, because it hides the fact that you have never had a math class beyond Freshman Baby Math. Being Roman Catholic greases the skids. Protestant less so. We already have our quota of 2 Jews and, as for atheists and Muslims, HaHa.

Of course, if you want to try for the House or Senate, you will not have to show any expertise in science or math either. A thesis or degree in Race Relations will put you on the fast track.

As for POTUS, it's good that you are not fluent in a foreign language--even better if you can manage to mangle English, which GWB mastered and as Obama did in today's speech where he used "hone in" when he meant "home in."

Posted by: jimbino | May 26, 2009 7:56:14 PM

I don't know about the Supreme Court. I do know this is the year the Cubs will finally win it all again.

Posted by: Marc Blitz | May 26, 2009 7:18:15 PM

Orin: why start there? Are the skill-sets the same? I can think of some traits that are important in a judge that are less important in a law professor -- chief among them the willingness to make decisions and the ability to not agonize unduly about them. Somewhat ironically, law professors are well-positioned to agonize over their scholarship in large part because the stakes are smaller!

Posted by: Paul Horwitz | May 26, 2009 6:07:54 PM


I'm not sure if you were being sarcastic here, or what. But that's just it: you obviously have to be intelligent enough, and schooled enough, and thoughtful enough, and disciplined enough, and articulate enough to be a good law professor. But there are lots of people who don't do it who could. I think we flatter ourselves into thinking that ours is an extremely difficult job.

But even assuming that you have to be especially smart to be a decent or good law professor and especially smart to be a decent or good appellate court judge, do you have to be any smarter to be a decent or good Supreme Court justice? Heck, if you ask me, being a lower court judge is more difficult in most ways. You deal with many more cases, have fewer clerks, and much less help from the attorneys and the briefs--many of both can be quite poor.

Posted by: Hillel Y. Levin | May 26, 2009 6:06:28 PM

I would start with this: How smart do you have to be to be a good law professor? What is it about the job of law professor that requires brilliance?

Posted by: Orin Kerr | May 26, 2009 5:59:51 PM

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