In response to my post on Wednesday on the Supreme Court’s struggles with the Aereo case and the intricacies of cutting-edge technology, a number of attorneys, including members of the Supreme Court bar, offered their insights. I am grateful to those who took the time to dissect the justices’ options.
One longtime member of the Supreme Court bar outlined some realistic options for the court. He pointed out that when the Supreme Court dumps a case — “dismiss as improvidently granted,” or DIG — it need not give any reason. Whether it is lack of expertise or ripeness or other surprises of which the justices were unaware, the court can avoid ruling on a case that more than one justice acknowledged was hard for the court to understand.
The lawyer also suggests, “Perhaps a more likely approach would be for the Court to acknowledge its lack of expertise, as it fairly often does, such as with technical subjects that are regulated by expert agencies (e.g., Nuclear Regulatory Commission), and direct the lower Court on remand to develop evidence on the areas where the Court feels the record may be lacking or it is not sure what the result should be.” He recounts a complex patent case he had before the Supreme Court where there were solicited briefs from no less than seven government agencies that had jurisdiction, and then the court ultimately denied review, allowing the Federal Trade Commission to resolve the issue in the context of a merger between companies involved in the suit. From this, he concludes that “the Court does not always have the expertise to decide certain questions. In such circumstances, it would seem best for it to acknowledge that, and either obtain the views of expert agencies (and perhaps others as well, through amici briefs), or send cases back down to deal with issues the Court is not knowledgeable enough to decide.”
In fact, this is not simply an option, but I would suggest, a necessary exercise of judicial restraint. The public can have respect for legal decisions only when it is confident that the justices know what they are doing. Having publicly expressed their qualms that in this case they don’t, it seems essential that the court not plunge ahead willy-nilly, hoping it understands new technology and isn’t ruining an entire sector of the economy. To paraphrase the chief justice, the court can’t be the impartial umpire, calling balls and strikes, if the court really doesn’t understand anything about baseball. If they tried, the result would lack legitimacy.