Seeking for Righteousness

The Personal Blog of Kaimi Wenger

Should Judges be Smart?

Stuart Buck takes a somewhat unconventional position in a recent article, suggesting that the “smartness” of a judge may be of little significance. The article makes a few points, some of which are stronger than others. Buck suggests that smartness is not well-defined. Smartness is overrated, and “shouldn’t be the only quality we look for in a Supreme Court Justice.” He even intimates that smartness may be harmful, with ominous cites to smart Nazis. “Smart judges may tend to undermine democracy,” suggests Buck.

So, let’s address the question — do we want our judges to be smart?


Buck’s first argument is that “smartness” is too vague a term to be of value. That argument is problematic. It’s clear that being smart may mean a variety of different things (many of which, at the end of the article, Buck suggests might be useful qualities for a judge). First, let’s try to drop “smartness” for the less vague “Intelligence.” Intelligence has many components. Intelligence can mean a high LSAT score or IQ. Intelligence can mean a broad knowledge base, an ability to rapidly assimilate information, an ability to formulate analytical arguments. Which exactly of these are bad things?

“Smart” may be used in many other contexts, such as in conjunction with the idea of “common sense.” But, the fact is that intelligence is a widely agreed upon term, and often easily measurable. Its general utility is seen in its widespread usage. Like most or perhaps all words, its meaning is not mathematically precise. It is nonetheless precise enough to talk about it in debate. Buck’s vagueness argument can be rejected using a line from Richard Epstein in defending against a similar critique of “property”– “He rejects a term that has well-nigh universal usage in the English language because of some inevitable tensions in its meaning, [and] suggests nothing of consequence to take its place.” (Takings at 21).

Required Intelligence

I would suggest that, as a start, it is beneficial that judges of all types be smart. Judges are extremely busy and asked to take in massive amounts of information quickly, and based on that information to make decisions which will greatly affect people’s lives. Judges are asked to determine life and death, to craft or review appropriate criminal sentences, to allocate huge amounts of money, to make decisions with far-reaching consequences.

At a minimum, a judge should be able to read well and organize information well mentally. She should be able to understand arguments and engage in reasoning. She should be able to process information quickly, and to understand the consequences of opinions.

I would suggest that anyone not considered “smart” is not likely to have that ability. The days of Solomon and the sword are over; the days of 450-page briefs on antitrust and telecom issues are here. If a judge can’t understand how Amchem and Ortiz affect Rule 23, or what effect St. Cyr and Zadvydas have on the incredibly complex immigration statutes, then I would worry about their ability to make appropriate rulings. And to understand Amchem or the INA, a judge has to be smart. Not necessarily Einstein, but not a dim bulb either.

Similarly, judges should be well-read. They should know enough to allow them to make intelligent rulings. They should know the laws, the constitution, and the history of the United States; important philosophies and ideas which might come out in cases; enough science and statistics to understand those when they come up.

Diminishing Return?

One possible position to take would be that all judges should be above the intelligence threshold laid out above, but no smarter. This also strikes me as wrong. Judges should be at least minimally smart, but great benefit can be gained from exceptionally smart judges. Who can argue with the brilliance of Chief Justice John Marshall in his Marbury opinion, where he skillfully avoided pitfalls and took a major step in establishing the judiciary as an equal branch of government. Minimally smart judges are required, but exceptionally smart judges can create exceptionally good results.

Intelligence Dangerous?

Buck averts to the possibility that smart judges might be arrogant. That is certainly a possibility. But then, dumb judges can also be arrogant. And a dumb, arrogant judge seems more likely to me to issue harmful rulings.

Buck is right, of course, that more than intelligence is required for a judge. His list of “wisdom, prudence, common sense, a suitable judicial temperament, a proper respect for the judiciary’s institutional role, and perhaps most of all, an awareness of his own cognitive limitations” is a fine list of judicial qualifications. There is no reason to assume that any of these attributes have any inverse correlation with intelligence. Of course a smart judge without any other redeeming virtues is a bad judge — but a dumb judge with the same lack of redeeming virtues is equally bad. Intelligence is obviously not the only quality a judge should have. But intelligence itself is not a negative.


October 1, 2002 - Posted by | Uncategorized

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