A recent article in the Washington Post on the composition of the Supreme Court reports on the work of Professor Benjamin Barton, whose data analysis points out the exceptional composition of the current Court. As a boy, I grew up in Brooklyn, New York, and thus take some pride in the fact that four of the five boroughs are represented on the Supreme Court -- and still further pride in the fact that Justices Antonin Scalia and Elena Kagan did tours of duty living in Hyde Park and teaching at one of my academic homes, the University of Chicago.
Yet that form of personal pride does not easily segue into sound social policy. Barton is right to insist that the composition of the Court as a body is not simply a matter of toting up the individual competences of individual Justices. The synergies from the mix really matter as well. Barton stresses the similarity of backgrounds, in that all the Justices grew up within the government system, either as lawyers on the appellate courts or operatives in the Justice Department or the White House. There is an evident want of hybrid vigor that comes when all the Justices have similar backgrounds.
The question is how does this play out when there are evident ideological divergences among the justices? One dimension that I think is important is the direct exposure to private law subjects, which for these purposes I define broadly to include not only contracts, property and torts, but also fields like bankruptcy, securities regulation and taxation, none of which can be understood without a firm grasp of a wide range of business transactions.
As best I can see, these areas are not well represented on the Supreme Court. To be sure, Justice Sonia Sotomayor did an eight-year stint of work at Pavia & Harcourt, a firm that specialized in intellectual property, and Justice Breyer had extensive experience in antitrust and communications law before entering the judiciary. But that work is not, in my view, sufficient to remedy the overall paucity of real private law engagement on the Supreme Court.
I think that these shortfalls make a difference not only in the cases that raise these private law issues, but also in constitutional cases that rest on strong private law conceptions. I think that one of the weaknesses of the full range of Supreme Court decisions in Stop the Beach Renourishment v. Florida Department of Environmental Protection was that none of the Justices had a solid command of the law relating to riparian and littoral rights, which was so critical to the correct disposition of the case. Similarly, in the recent decision in Pacific Operators Offshore, LLP v. Valladolid, the Justices exhibited a very shaky understanding of the principles of proximate causation as developed in both tort and workers’ compensation law.
These private law issues will loom very large, moreover, as the Court tries to work its way through the constitutional thicket in the upcoming challenges to the Patient Protection and Affordable Care Act. The notion of coercion is critical to dealing with the Medicaid piece of the problem, and the simple-minded distinction between coercion and encouragement that is found in the cases is not equal to the challenge. Likewise, it takes a strong grasp of the key principles of insurance law to understand the ways in which the novel approach to that topic in the PPACA influences the correct analysis of the individual mandate. I have coauthored briefs that deal with both the Medicaid and the individual mandate questions, which can be found here. For these purposes, however, my concern is that the heavy immersion in constitutional law issues makes it hard for Supreme Court justices to pick up these complex questions on the fly.
Professor Barton's implicit criticism is that we should broaden the paths that determine Supreme Court nominees. The lack of detailed working knowledge of private law subjects is part of the price that we pay as a nation for the constant stress on constitutional issues. Abortion and affirmative action are not the only questions that come before the Supreme Court.
Pointing out this difficulty, however, does not solve the problem. Supreme Court nominations come only years apart, and it is very difficult to see why -- with the politicization of the nomination and confirmation processes -- the pattern of decisions will change. But let’s hope that the deep engagement with private law is at least one thing that the President and the Congress consider going forward.