Throughout its history, the Supreme Court has struggled to control its caseload and to avoid becoming a court of error correction. Instead, it applies its resources to matters of particular national importance and to promoting uniformity in the law. This Article argues that the Court's approach to maintaining uniformity fails to provide adequate guidance to the lower courts. The Court focuses on resolving disagreements among the lower courts over what rules and standards to apply. But the Court largely ignores the question of whether those directives are applied in a consistent or predictable way. As a result, there are areas of law, particularly areas governed by standards (as opposed to rules), that are chaotic and unpredictable. This Article explains the historic and institutional reasons for the Court's approach and discusses its consequences. Specifically, the Article demonstrates that without guidance about how to apply standards, lower court judges, particularly in fact-intensive areas of law with large numbers of cases, may find it difficult or impossible to identify all factually analogous precedents, leading to incoherent and inconsistent results. The Article uses the law of summary judgment in employment discrimination as an extended example of this phenomenon. Finally, the Article proposes a new approach for the Supreme Court. The Article explores three particular mechanisms, each of which requires the Court to apply standards itself. These mechanisms rely on some of the traditional strengths of common law judging, and they provide the Court with valuable tools to promote the rule of law values of uniformity and predictability in the lower courts.
The Limits of the Olympian Court: Common Law Judging versus Error Correction in the Supreme Court,
Wash. & Lee L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/549