The “Dumbing Down” of Our High Court

September 16, 2014

It takes no heavy lifting to conclude that too many members of Congress are not up to the challenges we face as a nation. (In many instances, the draw for candidate A or B is a lack of knowledge, being “reg’lar,” etc., and many members of Congress grow little once they are elected.)

With Presidents the issue is different. We expect quick, easy, and painless solutions to complicated problems, long in the making. No one delivers, mostly. ‘Nuff said.

From the Supreme Court, however, I think we should expect plenty. By tradition, if not by law, the justices come to the job with an advanced degree. (Nowhere in the Constitution or the United States Code will you find a requirement that a member of the Court have a law degree.) And the justices bring slots more to the job. (See below.)

Alas, we’ve got a Court that is not meeting its mark. No politics here; I’m focused on the work product.

A recent study by Allison Orr Larsen, a professor at William & Mary Law School, The Trouble with Amicus Facts, highlights a recent form of unsatisfactory work product. The problem? The Court relies on false facts. (Sahil Kapur for Talking Points Memo is a bit kinder, referring to 7 Times the Court Has Relied on Sketchy “Facts”. And for an excellent overview, read Seeking Facts, Justices Settle for What Briefs Tell Them by Adam Liptak, published in the New York Times on September 1.) False, sketchy, or something else, it’s wrong and bad that we get decisions based on erroneous matter.

Two theories explain this problem, I think, and they are compatible with one another. First, and I’ve commented on this before, we have a Court with a singular lifestyle pattern. The justices are very smart people who attended excellent schools. Most have clerked for Circuit Court judges and, in many instances, for Supreme Court justices. Most have been judges, usually on the U.S. Circuit Courts, which are seemingly great places to learn the art of judging. Unfortunately, in all of the talent, there is often not much real world experience. These are the elites!

Now, all of us in the “regular people” world are familiar with the faults and foibles of the Internet. We see plenty of the “if I say it and, especially, if I say it many times, I can make it more true” mentality. Not so much, perhaps, these elite judges, cloistered away in their ivory towers. (Some of the cloistering comes from being disengaged to avoid bias. Much of it, though, simply grows out of being removed from the real world.)

Second, and I have no study to back this up, we seem to live in a world in which lawsuits get filed for the purpose of getting a decision from the U.S. Supreme Court. In the real world in which regular attorneys practice, suits involve attempts to resolve disputes between parties. In “Court-world,” for example, interest groups decide on a reading of the Second Amendment that effectively eliminates the preamble stuff about the militia and finds a group of plaintiffs who might be willing to sue.

In “Court-world,” then, trials are rare, for the case is all about the legal issue. Facts don’t get tested in court, in the normal fashion; instead, people supply the Court with briefs, whether a parties or as amicus curiae—or friends of the Court—that include citations to almost anything. A hard-working, skeptical justice might make his or her clerks check the citations from the dozens of briefs, or he or she might do it alone. Too often, however, as Professor Larsen’s study demonstrates, the justices assume the best and seem to worry little about the worst.

We talk plenty about the dumbing down of our society. No one wants to think about our highest Court and “dumbing down,” but when unsupported junk from the Internet gets used to help interpret make laws for all of us, we should be hard-pressed not to reach that conclusion.


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