Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.
It is safe to say that America currently has the most credentialed, vetted, and elite Supreme Court in its history. But as Benjamin H. Barton demonstrates in The Credentialed Court, that is not at all the same as having the best Supreme Court in its history. Credentials are one thing, but they are not by any means the sole measure of a quality justice, much less of a quality Supreme Court.
Barton arrives at this conclusion through hard work: He has carefully examined the biographies of the 115 people who have served on the United States Supreme Court, from John Jay to Amy Coney Barrett. Barton has analyzed their judicial careers, and more significantly their pre-judicial careers, in meticulous detail. He considers the circumstances of their birth, their initial education, their college education (if any—quite a few justices never attended college) and their law school education (again, if any, since many justices “read law” under practicing lawyers, as was the custom for the first century or so of our nation’s existence).
The results of this analysis are presented in a mix of insightful prose and interesting graphics. For example, the chart for “years of private practice” experience on the Supreme Court plummets over recent decades, even as the chart for “years as a government lawyer” reaches skyward. Barton observes that it is perhaps not a coincidence that the Court started treating juries as a hassle to be managed at about the same time it stopped having members who had tried cases in front of juries.
In short, he finds that the Supreme Court has become far less interesting as it has become far more standardized and winnowed. Our current crop of justices is made up of what Dahlia Lithwick calls “judicial thoroughbreds,” and that is an apt metaphor as thoroughbreds, though they tend to be good-looking horses, are produced via a good deal of inbreeding.
Nowadays everyone on the Court except Amy Coney Barrett is a graduate of Harvard or Yale law schools. Virtually all have attended top-tier undergraduate colleges. Not only were many Supreme Court clerks themselves before their elevation, some actually replaced the justices they clerked for. At every stage in their careers, they have passed through the eye of the needle in order to reach the top, in a race where a C in ninth-grade algebra might be enough to disqualify one for admission to a top college, or a bad day at the LSAT might block admission to the required law school. Many shaped their entire careers around the hope of a Supreme Court seat.
Today’s justices are highly credentialed, and no doubt quite smart. But the similarity of background is striking. Barton presents three anonymized biographies of current justices who are very different ideologically and politically, but essentially indistinguishable on the resumé level. This, he warns, puts the Court at risk for groupthink on the one hand, and excessive infighting on the other. It also means that the Court has little connection with ordinary Americans’ lives. (As I noted in my own book, The Judiciary’s Class War, the judiciary is the only branch of government that effectively requires a postgraduate degree for admission, and in today’s America, those with postgraduate degrees tend to have a lot in common.)
People who attend Ivy League colleges, work in top law firms on the East Coast, serve as Solicitor General or Court of Appeals judge, and then reach the Supreme Court have spent most of their lives—and essentially all of their adult lives—in a bubble. The current Court contains no military veterans, no evangelical Protestants, and no one who attended a state university.
By contrast, Barton notes, “one cannot help but be staggered by the rich lives of our founding justices.” John Jay, the first Chief Justice, served as a top-level diplomat before his appointment, negotiating important treaties even while on the Court. As a practicing lawyer, he handled “everything from collection matters to criminal charges.” Possibly the last justice with a similar background was Thurgood Marshall, who turned down a scholarship to Harvard for graduate legal studies in order to stay in Maryland and practice law, doing wills, divorces, contracts, and criminal cases all the way up to rape and murder. Notes Barton: “He went to law school to change lives and the law. Time spent at Harvard would have been a detour. This decision alone tells you everything you need to know about Marshall and our current crop of justices.”
Justice Joseph Bradley rose from an impoverished frontier farmer to a successful railroad lawyer—and, as a hobby, was also one of the nation’s leading actuaries. William Day negotiated the treaty that ended the Spanish American War. The first John Marshall Harlan had commanded a regiment in the Civil War, served as Attorney General in antebellum Kentucky, and played a major role in keeping Kentucky from joining the Confederacy. The last justice to have “read law” rather than receiving a law degree, Robert Jackson, spent most of his career as a successful lawyer in a relatively small town, but went on to be one of the most intellectually formidable justices of the twentieth century. Samuel Miller was not only a successful frontier attorney, but a frontier physician with an M.D. Lewis Powell spent 9 years chairing a school board. Perhaps the last of the pre-thoroughbred justices, Sandra Day O’Connor, grew up on a ranch without electricity or running water, and served as a state judge and legislator.
Most of these justices would be unconfirmable now, or more likely unappointed because of a lack of the necessary credentials, and the Court is the worse for that.
Worse how? It’s less diverse in terms of life experience and background. Barton contrasts a photo of today’s Court, featuring three women (one a Latina), a black man, and multiple Catholics and Jews, with a photo of the Chase Court, comprised entirely of rather dour white Protestant males. On facial diversity, the modern court wins (though the Chase Court displays an admirable facial-hair diversity), but on life experience, the Chase Court was far more diverse, because outside of race and gender, those justices “lived more varied lives.”
That matters not for its own sake, but because the Supreme Court isn’t simply a technical body designed to resolve technical legal questions, for which judicial thoroughbreds are well-suited, but a branch of government, intended to address questions with strong social and political components. That’s become even more true over the past century, even as the Court has become less connected to the real world. That sort of decision-making calls for practical wisdom and a knowledge of the world, which the current Supreme Court process neither selects for nor maintains. Practical wisdom comes from doing practical things, not from hoop-jumping.
The current Supreme Court looks more like an Ivy League faculty than like America. Like Ivy League faculties, its members are smart and credentialed. They also tend to focus on what interests them more than on what is important to the public at large. And, also like Ivy League faculties, their daily lives do not encourage an understanding of the kinds of problems most Americans face.
Originally, the justices were probably the least cloistered branch, as they spent much of their time riding circuit, traveling on horseback and in carriages, and stopping off in one town after another to hear cases. This was by design and was intended both to acquaint the people with the justices and to acquaint the justices with the people. (It is to be noted that the justices hated riding circuit, preferring a less-close acquaintance than that fostered by the “rascally inns” and shared beds of the time.) As Roger Sherman argued, “Justices can acquire a knowledge of the rights of the people of these states much better by riding the circuit, than by staying at home and reading British and other foreign laws.” They presided over trials that brought forth the rich pageant of humanity in ways that no legal conference or appellate argument can. Barton notes that President George Washington asked them to report anything interesting they saw or heard while on circuit and comments: “Imagine an America in which the justices have more insight into local goings-on than the President.”
Barton suggests that we return to this circuit-riding custom—travel is much easier now, and non-rascally accommodations widely available—both as a means of puncturing the Supreme Court’s bubble and as a way of encouraging frail old justices, who leave most of their work to their clerks, to retire. Couple that with a more open nomination and confirmation process to allow people of broader experience to return to the court, and we might have a better set of justices. We would certainly have more interesting ones.
The Credentialed Court is also quite interesting, well worth reading for anyone interested in the Supreme Court, its history, and America’s. The number-crunching is fascinating and useful, and the anecdotes are often very entertaining. It is highly recommended.