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High Court Needs Research Arm, Scholar Says

May 01, 1987|JIM SCHACHTER | Times Staff Writer

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."

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