Too often, and in too many important cases, the justices of the U.S. Supreme Court don't know what they're talking about, Kenneth Culp Davis says.
If Davis were anyone but who he is, the criticism would be dismissed as just another instance of court-bashing. Lots of people don't think much of the Supreme Court.
But Davis, a distinguished law professor at the University of San Diego, is a lion of jurisprudence, a scholar whose seminal thinking about law and how it is created have made him well-known in the nation's law schools and courthouses.
At 78, he has quietly launched a campaign to improve the decision-making capacities of the high court by expanding the range and scope of the information available to the justices as they rule in some of the most important cases.
Davis' proposal, outlined Thursday night in the Nathanson Memorial Lecture at USD, is simple. The Supreme Court, he argues, should have a research service of its own--or perhaps access to the Congressional Research Service--to supply it with scientific and technical data about issues reaching the high court.
"The justices need that kind of help in many cases, and, in general, they don't have it," Davis said in an interview before his address. "We can't think without facts."
Simple as it sounds, though, Davis' idea challenges the very foundation of the way courts work in the United States.
Traditionally, appellate courts review the record created in a trial court and whatever further arguments lawyers place before them. The judges and their law clerks may research the legal issues involved, but they typically don't conduct inquiries into the factual matters at the heart of the disputes or the practical consequences of their decisions.
Yet Davis argues that, however time-honored the adversarial approach to judicial decision-making may be, it results too often in bad law.
Congress, whose committees can investigate every aspect of an issue before drafting a law, and regulatory agencies, which seek expert guidance and public comment before issuing rules, do a much better job, Davis says, because they have the facts that judicial lawmakers are lacking.
"The Supreme Court is often at its best on complex thinking problems, on philosophical or ethical or moral issues, on analysis or reasoning, and on issues of interpretation," Davis wrote in a law review article published last year that first publicized his proposal.
"But the Court may often be at its worst on policy issues that are dependent upon understanding or instincts about legislative facts," he wrote. "Indeed, my impression is that, typically, the Court is basically baffled in trying to deal with legislative facts."
Justices of the high court have acknowledged the need for information that goes beyond the record created in an adversarial hearing.
Davis notes, for instance, that Justice Harry Blackmun spent much of a summer doing research at the Mayo Clinic before drafting the opinion in Roe vs. Wade that legalized abortion in 1973. But Blackmun did not give the parties in the case an opportunity to challenge his research; Davis says his proposal guarantees the parties' right to respond.
When Justice Byron White dissented from the court's landmark 1966 decision in Miranda vs. Arizona, which granted constitutional protections to criminal suspects, he noted that the court majority had not studied a single police interrogation to see the real-life dimensions of the issue.
"Judged by any of the standards for empirical investigation utilized in the social sciences, the factual basis for the Court's premise is patently inadequate," White wrote at the time.
Skepticism and Support
Privately, several current Supreme Court justices have expressed support for his proposal, Davis said, but they say the court is too busy to take on the task of winning congressional support and funding for a research service.
"I don't get disapproval," he said. "What I get, in effect, is 'Not now.' "
Toni House, spokeswoman for the Supreme Court, said Thursday that the court has no official comment on Davis' proposal.
Davis' idea garners considerable skepticism among other judges and lawyers.
"It just really totally turns the role of the court on its head," said John Cleary, a San Diego lawyer who has argued several cases before the Supreme Court. "The Supreme Court is like a jury. You have to trust their basic wisdom. But we rely on the fact that those individuals rely on the information they have (before them), and not backdoor knowledge."
Judge Joseph T. Sneed of the U.S. 9th Circuit Court of Appeals in San Francisco said many lawyers would oppose giving the justices the leeway to conduct their own empirical research.
"They feel they would lose control of the material that is being considered by the court," he said. "You can see how the researcher might very well become the master of the case."
Sneed, chairman of the appellate judges' conference of the American Bar Assn., noted that judges already are free to informally visit libraries or have their clerks gather information on a technical issue.
But in many instances, he said, the solutions to the problems before the nation's highest courts are not found in books.
"We're all uncomfortable when we're deciding cases and we're confronted with a situation where we really don't know what the consequences are of which way we go," Sneed said. "But then, frequently, no one does. That's where you reach deeply into your innermost feelings and come up with the way it ought to go. And that's all you can do. And then you watch."
Legislators can correct a judge's mistakes, he added. "Society has a way of correcting these things," Sneed said. "The courts don't have the last word unless they are accepted by the people."
Davis, though, says his concept of arming jurists with the best and most complete information available has a solid basis in legal history.
In 18th-Century England, he said, Lord Mansfield developed the outlines of modern Anglo-American commercial law by sitting in pubs and talking with merchants about how they conducted business. In the early 1900s, Louis Brandeis--then a Boston lawyer and later a legendary Supreme Court justice--submitted a factual brief that became the basis of a landmark decision giving states the power to limit the length of the work day.
Now, parties sometimes file such "Brandeis briefs" to give the Supreme Court technical information in a case. But such occasions are rare, Davis said.
The gray-haired professor--who taught at the universities of Texas, Minnesota and Chicago before joining the USD faculty in 1976--understands that his proposal may not win quick acceptance.
But he can afford to be patient. Fifty years ago, when he was a second-year student at Harvard Law School, one of his professors--an eminent specialist--rejected Davis' notions about the nature of evidence in legal cases.
Today, the professor's ideas have been relegated to the ash heap, and Davis' are embedded in the federal rules of evidence.
"So often, true ideas like this have to be kicked around for decades," Davis said. "Then, after they've been adopted, people say, 'How could we have been without this for so long?' "