Supreme Court's Problem Isn't Just Diversity
I have a somewhat different take on the issue of the diversity (or lack thereof) of the current Supreme Court, which Richard tackled below.
He is quite right that there is not enough representation on the Supreme Court of lawyers with experience in private law. If a national medical board existed (which I hope it will not, but give Obamacare time) to resolve disputes in the medical profession, we would not want it populated only by surgeons or psychiatrists.
But I submit that Richard's issue is more a symptom of the disease, rather than the disease itself. My preference is that the Court have little to do, if possible, with business issues. I worry that the more the Court involves itself in the core meaning of property, contracts, corporations, and so on, the worse the law will become. Far better, in my view, for the law on these matters to be made by the states (as originally understood by the Constitution's Framers), where they are subject to competition for businesses and population. It is a sign of the impetuous vortex for power that is our current Supreme Court that we worry what it thinks about private law and business issues.
Finally, I don't worry about the diversity of background issue as much as whether the Justices have a strong character that is resistant to criticism from media and academic elites. The judge for whom I clerked, Larry Silberman of the D.C. Circuit, once gave a speech on the "Greenhouse Effect," which referred to the pressures -- from the New York Times and the media on the one hand, to the academics and political players in D.C. on the other -- that push Justices to become more liberal over time. Decide a case in a liberal direction, and the Times will say you have "grown" in office and are "exercising statesmanship" (See, e.g., Justices John Paul Stevens, Harry Blackmun, Sandra Day O'Connor, and now Anthony Kennedy, who were all appointed by Republican Presidents but became more liberal once on the Court). How many Justices in the last 60 years became more conservative instead?
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Re: Supreme Court's Problem Isn't Just Diversity
John makes two points on his last post. The first that the Justices can be nudged left by the media is certainly true in some cases, but it is definitely false in others. What is striking therefore is that all the drift is in one direction, not that it is universal. I cannot imagine the story that could move Justices Scalia or Thomas to soften their position.
There are of course conservative media like the Wall Street Journal. Indeed, with the blogosphere the division of sentiment is getting closer than it once was. So perhaps there is some other explanation for the shift.
Mine is that at the Court the Justices are constantly peppered with a barrage of cases that are not random draws from the urn. They usually involve cases of serious injustice to individual litigants, and that in turn can easily shift the attention from long-term indirect effects to short-term considerations that focus heavily on the case. It takes a strong theoretical bent to fight that tendency, and the Court has so many new and difficult issues that time for speculation about general theory is scarce, and thus the bias helps move the needle. [Continued]
Edited on March 6, 2012 at 2:58amRe: Supreme Court's Problem Isn't Just Diversity
On the second question, I don’t think that John is right to ask the Supreme Court to steer clear of these issues.
To be sure, they don’t have to take many state diversity cases, but the private law issues are often embedded in federal statutes and federal constitutional law claims, so that there is really no place to hide. Bankruptcy, securities regulation and taxation are all federal subjects, and they are all parasitic on private law principles. The Court has to take these cases.
It only shows that the range of cases puts incredible pressures on the Justices. One way to relieve this pressures is to have term limits on Justices, which will put the pendulum back toward younger Justices for shorter terms. That proposal requires a constitutional amendment. In my view it is an important institutional reform because rotation in office is a spur to higher levels of performance.
Nov '11
Re: Supreme Court's Problem Isn't Just Diversity
I am not an attorney, but as a conservative, and granting the seriousness of the problem you lay out, the proposal of term limits for the Justices strikes me as over-strong medicine, to say nothing of its being very difficult to put into effect. Might it have an unsettling affect on res judicata, for instance? Do you see only a good result coming out of term limits? On the other hand, I suppose one could argue that Justice Marshall's decision in Marbury distorted the balance among the three branches a long time ago.
Dec '10
Re: Supreme Court's Problem Isn't Just Diversity
Richard,
I think John is completely right. It is the culture of this country, run by the media and academic elite which is corrupting and destroying this society. If you can not simply see this and can only critique from the point of view of economics, however justified, you will not be able to get out ahead of this wave of perversity and stop it. If you think that it is not the job of the Supreme Court to be concerned about the moral fiber of the United States, you are wrong.
Regards,
Jim
Edited on March 6, 2012 at 5:01amMay '10
Re: Supreme Court's Problem Isn't Just Diversity
I tend to think, in 2012, that with long life spans, term limits would make some sense. Term limits would decrease the level of intensity around appointments.
Of course, the other two branches also asserting their power would help too.
May '10
Re: Supreme Court's Problem Isn't Just Diversity
Up in the clouds, I'm sympathetic to this argument. Down here on Earth where I see the sausage made I say no thanks, at least until the states address their judicial selection woes. Now I'll shut up before I get myself in trouble.
Byron White?
Edited on March 6, 2012 at 3:50amNov '11
Re: Supreme Court's Problem Isn't Just Diversity
Bryan G. Stephens: I tend to think, in 2012, that with long life spans, term limits would make some sense. Term limits would decrease the level of intensity around appointments.
Of course, the other two branches also asserting their power would help too. · 9 minutes ago
Supreme Court Justices have long been notorious for their longevity. Your other points, I think, are well taken, especially the last.
Apr '11
Re: Supreme Court's Problem Isn't Just Diversity
Didn't the National Review have a "strange new respect" award for those judges that "grow" after being appointed?
Feb '11
Re: Supreme Court's Problem Isn't Just Diversity
Learned Hand practiced less than 12 years before becoming a judge. Yet his decisions always seem to me firmly based on common sense.
I worry that all this talk of diversity gives credence to legal realism and relativism. If the Supreme Court cannot render correct judgments for want of practical experience, who is to say that they do not also need a "diversity of experience" in terms of their race, gender and economic class. This seems the path towards a "representative" Supreme Court.
It is for those who brief the court to explain the practical implications of their decisions. I have often observed that bad decisions result as much from the limited understanding of the attorneys as of the judge. I think we're better off assuming that justices are rational and can learn from what they read, rather than relying on their backgrounds.
I would also suggest that Justice White's views did not change, but that the world turned underneath him.
Edited on March 6, 2012 at 4:40amOct '10
Re: Supreme Court's Problem Isn't Just Diversity
Lifetime appointment was meant to insulate Justices from crass political pressure. It’s hard to conclude that their retirement at, say, 75 with a financial and health care package befitting the position wouldn’t achieve that original intent. A limit of term is a reasonable thing to discuss if for no other reason than the extraordinary and—at the time of the founding—unimaginable increase in life expectancy.
But how about this too: why is the magic number exactly nine justices? Expanding the court would offer the prospect of broadening the diversity of experience discussed here. More importantly, perhaps, if combined with term limits, it would drain some of the oxygen from the intense political fire that each SCOTUS appointment entails. If we dilute the SCOTUS brand a bit, perhaps the Linda Greenhouse effect would be similarly thinned.
Feb '12
Re: Supreme Court's Problem Isn't Just Diversity
I think that concern over the diversity of the Supreme Court is a sign that it has become, in effect, a legislating body. One that we do not elect.
Judges should not be deciding matters of policy. If they don't decide matters of policy, then political pressure and personal opinion become much less of an option. Matters of black letter law are much less political.
Unfortunately I have no idea how to reverse this long journey we've been taking into the court-as-legislating-body.
Dec '11
Re: Supreme Court's Problem Isn't Just Diversity
Richard Epstein:
I cannot imagine the story that could move Justices Scalia or Thomas to soften their position.
Professor Epstein: You have certainly piqued my interest with this remark; do you hold a similar perception of Justices Roberts and Alito?
May '10
Re: Supreme Court's Problem Isn't Just Diversity
Matthew Gilley
............
Byron White? · 12 hours ago
Edited 12 hours ago
1) I thought I saw a slight moderating trend in Feliux Frankfurter as well, though I think that both he and White may have stood still while the Court drifted off toward port.
2) Why didn't John attack the worst recent case of a former conservative writing a liberal opinion, Silberman's opinion on the PPACA mandate?
3) And, my eternal suspicion is that Richard wants the Court to pick up more private law issues so that there is a better chance of getting cert for a really cool riparian water rights case. (theoretical emoticon placed here accompanied by rimshot)