Assessing the Supremes

The latest issue of The Atlantic has two interesting columns making arguments I haven’t seen elsewhere about aspects of the opening on the Supreme Court.

The strongest of the two is by Stuart Taylor Jr. He observes that the Court is dominated by appointees from the ranks of appellate judges as opposed to practicing lawyers or trial judges.

Debates over the Court’s “balance”—ideological, ethnic, gender—will doubtless heat up as Congress considers the current vacancy. Yet there is likely to be little discussion about the greatest imbalance—the one in the collective real-world experience of its justices. The Court’s steady homogenization by professional background has gone largely unremarked.Should we be concerned? After all, the Supreme Court is supposed to sit above politics and apart from popular whims. But when a large majority of the Court’s justices have never cross-examined a lying cop or a slippery CEO, never faced a jury, never slogged through the swamps of the modern discovery process, something has gone wrong. As the Court has lost touch with the real-world ramifications of its decisions, our judicial system has clearly suffered.

I think a proposal Taylor mentions — limiting judicial terms to 18 years and allowing each president to appoint a new justice every two years — would politicize the Court even more than it is now. Still, there is something to be said for justices who have some concept of the practical ramifications of the Court’s decisions.

Benjamin Wittes takes a slightly more political slant, one that isn’t quite as easy to resolve. He notes that lower court judges on both sides of the political aisle believe “the Court blithely ignores its own principles and precedents when they’re inconvenient; rules on matters not properly before it to reach the result the majority seeks; misstates facts; and issues shoddy opinions that give insufficient guidance to the lower courts.” That’s always a potential criticism of an appellate court, particularly if you’re on the losing side or the judge being overruled. Still, I am much like Laurence Silberman, a senior judge on the D.C. Circuit Court of Appeals quoted in the column. He says, “I stopped reading Supreme Court opinions years ago, because I got too depressed — unless I have to read them for a particular case or I’m teaching them.” And, sadly, Silberman is correct when he also says that he tells law students it takes a year to figure out how to understand the holding of many of the Supreme Court decisions.

A judge is a law student who grades his own papers.

H.L. Mencken

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