Permission to reprint granted from The Atlantic Monthly.
I’ve been working on some questions in case the makers of Trivial Pursuit ever decide to put forth a Supreme Court edition: Now that Sandra Day O’Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)
The answers would have been starkly different fifty years ago. Five of the nine justices who decided Brown v. Board of Education, in 1954, had once worked as trial prosecutors, and several had substantial hands-on experience in commercial litigation. More famously, that Court included a former governor, three former senators, two former attorneys general, two former solicitors general, and a former SEC chairman.
That Court, in other words, was intimately familiar with the everyday workings of the political and judicial systems, and with the beliefs and concerns of everyday Americans. Not so the Court that recessed in June, eight of whose members (in addition to their long tenure in the splendid isolation of the Supreme Court’s marble palace) have been drawn from judgeships on appellate courts, and sometimes from academic law before that—places already far removed from the hurly-burly of our judicial and political systems. The current justices are smart and dedicated. But they’re not like you and me.
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.
The Court’s slow disengagement from practicality was visible by the 1970s, when, for example, in a well-intentioned effort to protect students from unwarranted suspension and tenured public school teachers from arbitrary dismissal, the Court issued a series of decisions requiring hearings before such action. The justices presumably imagined simple, cursory hearings to guard against egregious abuses of power. Predictably, that’s not what happened. Hearings quickly became clogged with lawyers, witnesses, trial-type formalities, multiple administrative and judicial appeals, and years of delay. To avoid such ordeals, many principals and administrators have simply stopped trying to remove thuggish students and inept teachers from our schools.
Over time the justices have failed ever more conspicuously to understand what messes their decisions might make. In 1997, while forcing Bill Clinton to give a sworn deposition in the Paula Jones sexual-harassment lawsuit, the Court stunned litigators and trial judges by predicting that this was “highly unlikely to occupy any substantial amount of [President Clinton’s] time.” Only Justice Stephen Breyer seemed to appreciate that the realities of modern discovery practice “could pose a significant threat to the President’s official functions.” Sure enough, the district court ordered Clinton to answer detailed, tangential questions about his relations with various women. The rest is history.
In a string of decisions since 2000 the Court has thrown the criminal-justice system into utter confusion by repeatedly changing the rules on the roles of judges and juries in sentencing, while providing minimal guidance on how the new rules should be implemented. In response to the rulings, thousands of current inmates have requested re-sentencing, to the consternation of federal trial and appellate judges, who are all over the lot on how to handle these requests. (The judges also have major differences of opinion on how much weight they should now give sentencing guidelines in new cases.) We’ll be hearing more about this confusion—it’s a clear recipe for an onslaught of additional appeals down the road, which will further tax our already overburdened criminal-justice system.
Then there’s the Court’s recent Janus-faced pair of rulings on governmental displays of the Ten Commandments. The gist: recently installed, framed copies must be stripped from courthouse walls; forty-year-old, six-foot-high monuments can stay on the grounds outside. The logic: well, for that you’ll have to read ten separate opinions totaling 140 pages. In announcing part of this mess, Chief Justice William Rehnquist said, “I didn’t know we had that many people on our Court.” Chief Justice John Marshall once observed (in Marbury v. Madison) that “it is the province and duty of the Judicial Department to say what the law is.” Government officials and lower-court judges often find the law difficult to ascertain today. But at least they do know—in minute detail—what each justice thinks it ought to be.
As our Supreme Court justices have become remote from the real world, they’ve also become more reluctant to do real work—especially the sort of quotidian chores done by prior justices to ensure the smooth functioning of the judicial system. The Court’s overall productivity—as measured by the number of full, signed decisions—has fallen by almost half since 1985. Clerks draft almost all the opinions and perform almost all the screening that leads to the dismissal without comment of 99 percent of all petitions for review. Many of the cases dismissed are the sort that could be used to wring clear perversities and inefficiencies out of our litigation system—especially out of commercial and personal-injury litigation.
Traditionally the Court decided major questions of federal commercial law, adapting to the changing nature of business and the increasing complexity of litigation. Yet according to Michael Greve, the head of the American Enterprise Institute’s Federalism Project, this Court has “resolutely refused to tackle the inconsistencies and absurdities that, after decades of neglect, afflict nearly every area of commercial litigation.” One reason, Greve argues, is that with the exception of Justice Breyer, “the Court has absolutely no idea what business litigation in America now looks like.”
What accounts for the Court’s drift? There are two factors—one political and one biological. Politically the appointment of Supreme Court justices has become more contentious as it has focused on a small number of polarizing issues—most notably abortion. The ideal candidate today is predictable enough to suit the president and his political base, yet not so predictable as to be an easy target for critics. Appellate-court judges simply fit the bill better than other candidates. Their legal opinions signal ideological leanings (providing more of a track record than would exist for, say, a prominent litigator or a prosecutor). But because they are bound to follow Supreme Court precedents, they ordinarily don’t say whether they would overturn those precedents if, as justices, they got the chance. (Elected officials, in contrast, must take specific stands on abortion and other hot issues—all but disqualifying them from consideration for the Court.) Past justices took many roads to the Supreme Court. Today, almost invariably, there appears to be just one.
Moreover, that road is receding further in the rear-view mirror. Longer life spans and justices’ increasing reluctance to retire have raised their average tenure from fifteen years before 1970 to twenty-five years since then. Until this summer no justice had retired in eleven years. Real-world experiences gained before their years on the appellate and Supreme courts have become distant memories for today’s justices.
Will future appointees bring more diversity of experience? Alas, the political incentives to pick appellate judges seem likely to persist. But one proposed reform—which, after a phase-in, would limit judicial terms to eighteen years, and allow each president to appoint a new justice every two years—would create more opportunities to diversify the Court over time.
The proposal, which is backed by some forty-five leading legal scholars, both liberal and conservative, would (among other benefits) ensure frequent and regular infusions of new blood, and with it more recent experience with the practical aspects of judicial decisions. And because more appointments would lower the political stakes for each one, presidents might be willing to look beyond the usual suspects.
That would be welcome. Quietly our Supreme Court has become a sort of aristocracy—unable or unwilling to clearly see the workings, glitches, and peculiarities of the justice system over which it presides from such great altitude.