Discussion of possible replacements for retiring Justice Souter have focused mainly on questions of racial and gender diversity. But what about diversity in expertise?
My friend Mitu Gulati and I explored that issue in our article How do Judges Maximize? (The Same Way Everybody Else Does–Boundedly):
When faced with the necessity of deciding securities law issues, the justices and their clerks doubtless recognize that they lack the expertise necessary to decide such questions with confidence. As specialists in a different field, they may be inclined to defer to specialists in this field. Just as specialization is a rational response to bounded rationality, so too is a nonexpert’s decision to defer to a recognized specialist. Like all decisionmakers, but perhaps more so because of their high level of visibility, Supreme Court justices likely care about their reputation for competence. Because their decisions are highly scrutinized, they have a strong incentive to defer to expert opinion. Recognizing that even a good decisionmaker is subject to the proverbial “act of God,” the market for reputation evaluates decisionmakers by looking at both the outcome and the action before forming a judgment. If a bad outcome occurs, but the action was consistent with approved expert opinion, the hit to the decisionmaker’s reputation is reduced. In effect, by deferring to specialists, a decisionmaker operating under conditions of bounded rationality is buying insurance against a bad outcome.
In a collegial, multi-actor setting members of the decisionmaking body likely will prefer to rely on internal specialists. Deferring to someone else makes one vulnerable. In this context, justices who opt for deference are entrusting their reputation to the specialist to whom they defer. Ordinarily, the resulting vulnerability creates agency costs and, as a result, mandates monitoring the specialist. If the deferring justices trust the specialist, however, they need not expend resources on monitoring. Trust arises out of two primary sources. “Affinity trust” exists ex ante. It is based mostly on shared values and is most likely to exist where there is ethnic or religious affinity. “Learned trust” arises out of repeat transactions in which the players prove consistently trustworthy. In a small but heterogeneous community, such as the Supreme Court, learned trust likely dominates. One will thus be more likely to defer to those who have earned one’s trust, which is most likely to be a fellow justice perceived as having special expertise.
Within a multi-member deliberative body, the potential for log-rolling further encourages deference. A specialist in a given field is far more likely to have strong feelings about the outcome of a particular case than is a nonexpert. By deferring to the specialist, the nonexpert may win the specialist’s vote in other cases as to which the nonexpert has a stronger stake. Such log-rolling need not be explicit, although it doubtless is at least sometimes, but rather can be a form of the tit-for-tat cooperative game. One powerful strategy in an infinitely repeated game is to play on a tit-for-tat basis: Player 1 begins by cooperating, and then chooses in each subsequent round to play as Player 2 did on his previous choice. In effect, tit-for-tat trains the opposing player to be cooperative. In judicial decisionmaking, deference thus invokes a norm of reciprocation that allows the nonexpert to count on the specialist’s vote on other matters.
If this analysis is correct, the widely shared assumption that Justice Powell received substantial deference from his colleagues in this area has a rational economic explanation. We tested the Powell business deference/expertise hypothesis by looking at the proportion of important securities and corporate cases assigned to him during his tenure on the Court. As a proxy for the importance of cases decided by the Court, we looked at opinions that found their way into the casebooks. Specifically, we looked at thirty-eight currently used case books on Corporations, Business Associations, Securities Regulation, and Corporate Finance. For each casebook, we counted the number of securities and corporate opinions by the various Supreme Court justices.
The [result] reveals a dramatic dominance effect for Powell, both in terms of his overall number of securities and corporate cases in casebooks and his per year entry rate.
The implication of all this should be apparent: If Obama nominates as a replacement for Souter someone with demonstrated specialized expertise in a field in which the other members of the court lack expertise, that nominee likely will end up with disproportionately large influence on court decisions within his/her field. If Obama picks a specialist, accordingly, the Senate would be well advised to go beyond the narrow question of whether the nominee is likely to vote to overturn Roe and also ask: What is the nominee likely to do in his/her field of expertise? Indeed, in the long run, that latter question may matter a lot more.
In turn, all of this suggests that Obama--to the extent he's interested in making a good government choice--ought to be asking himself, "what area of expertise does the current court lack that I think it needs"?
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