Is career diversity a bad thing in the highest court in the land?
Adam Liptak has this great piece in today’s New York Times, headlined ” “Roberts Sets Off Debate on Judicial Experience.” Here are snippets:
For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development might be a good thing.
Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.
As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority. As a consequence, Chief Justice Roberts said, “the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science.”
Since then, Chief Justice Roberts continued, “the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?” That move, he said, has resulted in “a more legal perspective and less of a policy perspective.”…
But there are reasons to question the chief justice’s conclusions. The political scientists who study such things say there is no empirical support for the notion that former judges are more apt to feel constrained by earlier rulings or to suppress their political views. “Former appellate court judges are no more likely to follow precedent or to put aside their policy preferences than are justices lacking judicial experience,” according to a study to be published soon in the University of Pennsylvania Law Review.
If Chief Justice Roberts was implying that the court became less political as the number of former judges on it rose, said Lee Epstein, who teaches law and political science at Northwestern and is one of the authors of the study, “the data don’t support it.”
And not everyone supports the idea that members of the court should have uniform backgrounds. The psychological literature demonstrates that “the more homogenous the group, the worse the quality of the decisions they make,” said Tracey E. George, a law professor at Vanderbilt and the author of a law review article about the consequences of promoting former judges to the Supreme Court….
Chief Justice Roberts did say that the current justices’ limited trial court experience was “an unfortunate circumstance” and “a flaw.” Chief Justice Rehnquist tried to remedy that by once appointing himself to the trial bench in Virginia during a Supreme Court recess. “He heard a case and issued the opinion,” Chief Justice Roberts recalled, “and was promptly reversed by the Fourth Circuit.” He added, “Partly because of that, I can assure you that I am not going to appoint myself to the trial bench.”
As regular readers know, I have long complained about the absence of judges with trial court experience on the Supreme Court and I am a fan of a much more diverse SCOTUS bench. Though I am not fully sold on Professor Adrian Vermeule argument in this article argues that the Surpeme Court should have at least one “lay Justice,” I am suspect of the Chief’s essential assertion that more Justices should be like him (and I am also disappointed by his unwillignness to experience the unique challenges faced by trial judges).
Some related old and new posts on judicial appointments: