The frequent irrelevancy of the Supreme Court

Yesterday I wrote about the great oral advocate Paul Clement getting knocked around in an appearance before the Supreme Court.  That got me thinking about the “center of the universe”  and the “field.”   I once heard a really smart judge refer to the Supreme Court as the “center of the universe”  and the rest of the judiciary as the “field.”   This judge did so without the slightest bit of irony–she really meant it.  It struck me then, as it strikes me now, that such views are often wrong as an empirical matter.

A lot of what the Supreme Court does is simply irrelevant to what federal trial judges do on a daily basis.  Take, for example, the Daubert case that was supposed to be a big deal when it came to expert testimony.   Boiled down, Daubert simply said that an expert had to have an adequate foundation for his or her opinion.   Well, . . . sure.   The “field” absorbed Daubert with little or no change in what was actually going on in most federal trial courts.  A similar shrug happened with the “big” pleading case of Bell Atlantic v. Twombly.  Very little, if anything, changed “in the field.”   Prior to Twombly, most of the time, the goofy cases got weeded out.  Same, same after Twombly.

Irrelevant decisions occur in the Supreme Court’s criminal docket as well.  For example, no one who knows anything about search and seizure law thinks this term’s “dog sniff” case will have any meaning in the “field” save for a vanishingly small number of cases.*  The only real impact of that case is that Aldo the German shepherd got a lot of love.

In short, while the Supreme Court may exist at the “center of the universe,” it frequently plies its trade in a “galaxy far, far away.”


*Now, it is true, that the Supreme Court can really screw things up.  Look at what the Supreme Court did in Booker and those line of cases.  If haphazardly injecting chaos into a system is a good thing, the Supreme Court is very good at that.  Perhaps that is because when you are at the “center of the universe” its hard to look out.

8 responses

  1. Talk about screwing the field. How about the jumbled mess the Great Ones have made of the Sixth Amendment’s Confrontation Clause? After Williams v. Illinois, how is the field supposed to sort anything out?

  2. Hah, I was just about to mention Confrontation. But forget about Williams. Let’s go back to Crawford. They completely screwed up the Conf. Clause because dead British judges from the 1600s spoke to Scalia in his sleep.

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  7. Brad,

    Thanks for your kind remarks, but I surely am not “the man.” Most of the time, I’m a bit of jerk with a big mouth. That said, I would enjoy making your acquaintance next time (if ever) you have the opportunity to practice out here in the hinterlands. All the best.


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