With the Supreme Court, performance counts, and needs to be counted

Share with others:

Print Email Read Later

Over the last several years, the Pennsylvania Supreme Court has endured what seems like an endless series of crises that have damaged public confidence in it. From the botched judicial pay raise to the kids-for-cash debacle in Luzerne County to the near-death experience of the Philadelphia family courthouse, sometimes it seems like the justices can't do anything right and can't provide adequate oversight for 60 judicial districts statewide.

But what about the tasks that must form the core competencies of the court -- deciding cases and creating a coherent and workable body of case law?

Those functions don't easily generate the kind of stories that gain banner headlines on Page 1. And reporting on it can require a great deal of grunt work, much of it to provide context. But the court's day-to-day work has to be closely monitored, and preferably quantified, if Pennsylvanians are to form a judgment on whether the justices are doing a good job.

In short, if you can't count something, it's hard to evaluate.

Is the court deciding more or fewer cases? Is the court achieving consensus, or is it being submerged in a thicket of minor concurring opinions that may preserve one or two justice's cavils but does little to add to the body of useful case law? Are the court's opinions decipherable, not only to those with law degrees but to citizens and businesspersons who rely on a predictable body of law?

Some of these questions require qualitative analysis. But breaking down the court's work statistically can provide the building blocks of analysis.

The New York Times, in a series by Adam Liptak, has been giving the wire-brush treatment to the U.S. Supreme Court under Chief Justice John Roberts. Much of Mr. Liptak's series has focused on the more quotidian aspects of the court's work, and the picture it paints is not always of a high-functioning institution. And much of it relies on statistics and computer-based analysis.

More important than the conclusions reached by the Times is that its work rests on a bed of data gathered mainly by academic institutions.

At The Legal Intelligencer, we have often made projects of quantifying the court's work rate, opinions where the court couldn't muster a majority and the number of cases the court has agreed to hear but tossed aside as "improvidently granted" petitions. But there are so many questions that we would love to see academics study.

Mr. Liptak even pointed to an academic study in progress that is attempting to use computer software to discern how much the U.S. Supreme Court justices rely on law clerks to shape their opinions, and how much language is lifted from litigants' briefs. We have to admit that we'd be fascinated if our state Supreme Court justices' work could be placed under a similar microscope.

While law schools invariably adopt a national approach, most law schools in Pennsylvania send a majority of their graduates to practice in this state. It makes sense, therefore, that law professors train some of their focus on examining the performance of Pennsylvania's legal institutions.

Duquesne University, for example, has done trail-blazing work on the Pennsylvania Constitution. And Villanova devotes an issue of its Law Review every year to an exhaustive review of the 3rd U.S. Circuit Court of Appeals.

The late Chief Justice Ralph Cappy often emphasized the state Supreme Court's role of being a "teaching court." Well, the pupils of the high court -- hundreds of intermediate appeals court and trial court judges, along with thousands of practicing lawyers -- could use some tools to see if the teachers are doing a good-enough job.

For more articles like this, please visit www.thelegalintelligencer.com .


Create a free PG account.
Already have an account?