Is the Court We Have the Court We Want?

May 26, 2014

Nine justices sit on the U.S. Supreme Court. Eight—Justice Elena Kagan is the exception—were federal appellate court judges before they ascended, with four serving on the D.C. Circuit, two on the 2nd Circuit (Connecticut, New York, and Vermont), and one each on the 1st Circuit (the rest of New England) and the 3rd Circuit (Mid-Atlantic states). Only Justice Anthony Kennedy, who served on the 9th Circuit, does not come from one of the 13 original states. (Justice Stephen Breyer was born in San Francisco and graduated from Stanford, but went to Harvard for law school and has spent his professional life on the East Coast. Justice Clarence Thomas also spent time in Missouri early in his professional career.)

Five of the justices graduated from Harvard Law School. Three graduated from Yale. Only Justice Ruth Bader Ginsburg graduated from another school (Columbia), and she left Harvard for Columbia because her husband Martin got a job in New York. (And the one non-circuit judge was, before she became President Barack Obama’s Solicitor General, the Dean of the Harvard Law School.)

You’re probably getting the point! Many a laugh was had at the expense of Sen. Roman Hruska (Rep-Neb.) when, defending President Richard Nixon’s attempt to place the thoroughly undistinguished and unqualified G. Harrold Carswell—a federal judge—on the Court, he said:

So what if [Judge Carswell] is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they? We can’t have all Brandeises, Cardozos, and Frankfurters and stuff like that there.

An embarrassing comment, for sure, but we’re getting a form of justice from our Supreme Court that definitely reflects the composition of the Court. Judges are removed from society in ways that are not readily evident to all. Conscientious judges limit their contacts to avoid conflicts of interest. Increasingly, most judges at all levels come from the public sector attorneys, as salaries for judges—if retirement pay gets ignored—don’t compete even closely with earnings for private practice attorneys. And federal judges have lifetime appointments, get selected by the President of the United States, and are confirmed by the Senate. (How many people do you know who’ve had a telephone conversation with POTUS?)

Times have, indeed, changed. Justice Sandra Day O’Connor was a state legislator in Arizona in the 1970s, and an elected judge. So she put herself out there, asking people to vote for her, something that none of the current justices have ever done.

In the prior century 51 justices were appointed. They included a former President of the United States (William Howard Taft), Governors (Charles Evans Hughes, Frank Murphy (who was also the Governor-General and High Commissioner of the Philippines), and  Earl Warren), Senators (Hugo Black, James Byrnes, Harold Burton, and Sherman Minton), Congressmen (Mahlon Pitney and Harold Vinson), Attorneys General (William Henry Moody, James Clark McReynolds, Harlan Fiske Stone, Robert Jackson, and Tom Clark), Secretaries of Labor (Arthur Goldberg), State (Charles Evans Hughes and James Byrnes), and Treasury (Harold Vinson), a Mayor (Harold Burton), a county attorney (Pierce Butler), and exceptional attorneys (Louis Brandeis, Abe Fortas, and Thurgood Marshall). The justices who were appointed in the prior century came from 25 or more states, while the current nine are, again, concentrated along the East Coast, Justice Kennedy excepted.

No doubt, we have bright and talented justices serving on the Court. (I’m in “if you don’t have something nice to say” mode, but I do mean what I say about intelligence and talent.) We don’t, however, have people with governmental and private sector experience. Essentially, we have something akin to an elite “academy” of judges! I’m not asking for mediocrity, and I appreciate the fact that organizations—in this case, the cadre that kicks into gear when a vacancy arises—tend to follow established processes. I also can’t ignore the fact that diversity associated with race and gender dominates any discussion about getting a broader mix on the Court. That all said, we really do need to think about how we have ended up with the Court we have.

P.S. There’s certainly an argument that the diversity of experience I noted did not, necessarily, get us a better Court. Difficult issue, for sure, and it won’t get easier as our society and its issues get more complex.

Law

4 Responses to Is the Court We Have the Court We Want?

  • Interesting. Good point, and something most of us haven’t really thought about. Thanks.

  • At 5:00 AM in a jet lagged state, I can only share one thought and that is perhaps POTUS has gotten lazy and does not want the hassle and embarrassment of a confirmation fight for a judicial candidate that not only has published opinions to be criticized, but also has a political history to defend. Credit the change in politics and the media. Or not.

    • Most of the current member of the Court had the history that comes with sitting on a circuit court. No one wants confirmation fights these days, for sure, but I think this is more about an Establishment culture that has developed over decades. We’re used to having circuit judges as Supreme Court justices, and so it goes.

      On a different but related point, I didn’t mention the fact that law clerks who work at the Supreme Court come from the same few schools. Justices tend to hire clerks whose views they share. These clerks end up in Big Law firms, or they teach at fancy law schools. Not always, certainly, but often. (On occasion–as with the Chief Justice, Justice Elena Kagan, retired Justice John Paul Stevens, and others from the past–they end up on the Court.) There’s a meritocracy, in the sense that if you go back a generation or three or four, you might find names on the rolls at Ellis Island, but we’ve molded and shaped a class that perpetuates, and if you’re not part of it, knock, knock, knocking probably won’t get anyone to answer the door.

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