TCS Daily

Smarty Pants in Robes

By Stuart Buck - September 30, 2002 12:00 AM

"Who is the smartest Supreme Court Justice?"

This was the pressing question that arose when I had dinner with a few well-connected lawyer friends not too long ago. It was a question that I have often heard, and one that the other diners had apparently discussed quite thoroughly with other friends.

One person (a Supreme Court clerk at the time) said that among his/her fellow Supreme Court clerks, it is commonly agreed that Scalia, Breyer and Souter are the smartest. Another person averred that in his group of ex-Court-clerk friends, it was unanimous that Rehnquist is the smartest, in large part because he is the most "wily" at getting his own views adopted into the law. Everyone seemed to agree that the Court's dim bulbs are Kennedy, O'Connor, and Thomas. Along with those three, Ginsburg also came in for some criticism for having failed to write any "great" or "noteworthy" opinions.

After the conversation, to which I contributed little except a few nods, I came to the following conclusion: What the heck is the matter with us lawyers? Why are we so obsessed with ranking everyone we meet on a "smartness" scale?

It starts with the selection of law schools. We all try to get in the highest-ranked school by proving how "smart" we are on the LSAT. Then in law school, we all talk about who is the "smartest" in terms of grades (never mind the all-too-common observation that real learning and lawyering ability are not perfectly correlated, to say the least, with law exam performance). Then we scramble to get clerkships with the smartest judges, who themselves select clerks largely on how "smart" they have proven to be. Afterwards, we try to work for the firms that are ranked the highest, in large part because of their "smart" lawyers. And, of course, we talk about who is the "smartest" Supreme Court Justice.

The first problem with this is that we seem to have a very narrow view of what constitutes "smartness." O'Connor, to take one example, may not write opinions that sparkle with wit and style like Scalia's. But she chooses to write opinions cautiously, often concurring so as to narrow the scope of the ruling. She is thus a model of the one-step-at- a-time minimalism recommended by that academic luminary Cass Sunstein, who is widely regarded as extremely smart. So why is she not regarded as at least as smart as Sunstein, who doesn't face the difficulty of putting his ideas into practice?

To take another example, Thomas is often regarded as a not-very-smart follower of Scalia. But anyone who takes the trouble to actually read a few years' worth of Court opinions - all of them, not just the sexy cases - will be struck by one thing: When you see an opinion that is so technical and difficult that it would take an Master's degree in tax law just to understand the summary, chances are it was written by Thomas. Since his law school days, Thomas has been known for deliberately seeking out the difficult subjects of tax, ERISA, and corporate law. Why isn't he regarded as smart? Sheer ignorance on the part of the rankers, I suppose, or perhaps a smidgen of racism. I would guess that quite a few people who denigrate Thomas as lacking smartness would themselves be incapable of understanding many of his opinions. As one of Thomas's former clerks once said to me, "Look at where Thomas came from, and look at the heights he has reached and the opinions he writes. He must be one of the smartest people in the world."

But the problem is not just that our view of smartness is too narrow. It's that smartness itself - however defined - shouldn't be the only quality we look for in a Supreme Court Justice. The Unabomber is smart. So is Noam Chomsky. Anyone up for nominating them to the Court?

In fact, "smart" people are all too often prone to fall for the belief that they alone know how to run the world, and that government should be massively centralized, so that "smart" people like themselves can make decisions properly. One sees this in the intellectuals (e.g., Heidegger) who sympathized with the Nazis, and much more so in the predilection that many Western intellectuals had for Communism and socialism. Judging from the 20th century, it seems that "smart" people are more, rather than less, likely to support the evils of totalitarianism.

This is not to say that "smart" judges will end up promoting socialism, or that "stupid" judges will never do so. But the smarter the judges, the greater the risk that they might realize that they are smarter than the average person or elected representative, and then become all too eager to step out of their institutional role in order to create law themselves. Smart judges may tend to undermine democracy, in other words, unless (like Socrates) they force themselves to remain aware of how ignorant they truly are.

In short, while I am not always opposed to smartness per se, I would prefer that a judge's smartness be combined with wisdom, prudence, common sense, a suitable judicial temperament, a proper respect for the judiciary's institutional role, and perhaps most of all, an awareness of his own cognitive limitations. But because those qualities are not as easy to rank and quantify, we lawyers tend to ignore them. Which is not a smart thing to do.

The author is an attorney and publisher of The Buck Stops Here.



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