United States v. Lopez never presaged a huge rollback in national power: why is this?
“The Bubble” and the Judiciary: Is There a Solution?
The 2016 election focused attention on the cultural, social, and economic divide that separates the highly-educated coastal elites from struggling working and middle-class voters in neglected “fly-over country.” The nation has become increasingly stratified, in a variety of ways, threatening to rend our shared civic fabric. Pundits have coined a term for this phenomenon— “the bubble”—and cited it as an explanation for dysfunction in higher education, imbalance in the media, and polarization in American politics. The Judiciary’s Class War, a thin but highly-readable volume written by University of Tennessee law professor Glenn Reynolds (of Instapundit fame), posits that the bubble also affects judicial decision-making, especially by the federal courts.
Reynolds’ timely and perceptive essay points out what often goes unnoticed: The justices currently serving on the U.S. Supreme Court all graduated from Ivy League law schools (eight of nine from either Harvard or Yale), and include no military veterans, former politicians, or judges with state court experience. The current justices overwhelmingly hail from—or have professional roots in—the Northeast-D.C. corridor (Neil Gorsuch alone came to the court from somewhere other than one of the coasts), and conspicuously lack significant private sector legal experience. Most justices were academics or lower court judges prior to their appointment, and those who did practice as lawyers tended to work for the federal government or as appellate lawyers—hardly representative of the bar as a whole. John Roberts’ specialty at Hogan & Hartson was arguing cases before the Supreme Court.
Unlike prior eras, in which self-taught lawyers such as Robert Jackson, former elected officials (Earl Warren, Hugo Black), distinguished private practitioners (William Rehnquist, Lewis Powell), or night school graduates (Warren Burger) might aspire to the High Court, in recent decades the judiciary has become dominated by what Reynolds calls Front-Row Kids—a credentialed elite with a prescribed resume. As he states, “the judiciary is one branch of the government that looks a lot more like an Ivy League faculty than like America as a whole.” The problem with “the bubble” is that the lack of experiential diversity—which is the product of different regions, different professional backgrounds, and different life experiences—reinforces an insular point of view. And the bubble is becoming ever more entrenched, as the cost and exclusivity of an elite legal education continue to escalate.
An overreaching federal government is enabled by an imperial judiciary, which is guided in large part by the policy preferences of the self-serving elite legal culture that dominates the very institutions responsible for incubating our judicial candidates: Ivy League law faculties, the intellectual commentariat, and the Beltway political establishment. The supercilious Front-Row Kids are either oblivious to the attitudes and beliefs of their less-educated peers—the Back-Row Kids—or they actively disdain them as “deplorables” (or a combination of the two). In any event, the life-tenured federal judiciary, insulated from public opinion, often parrots a narrow perspective not representative of the broader body politic. The overbearing arrogance of America’s “law-trained elites” was a frequent theme of Justice Antonin Scalia’s dissents.
This is a serious problem, for which Reynolds (himself a Yale Law School graduate) should be commended for publicizing. Reynolds is the rare legal academic with a populist ear, which accounts for his success as a blogger and commentator (he writes regularly for USA Today). Groupthink is a powerful force, keeping this subject from getting the attention it deserves. I hope that Reynolds’ book is widely read—and discussed.
What is the solution? This is the difficult part. Reynolds proposes several potential solutions, none of them particularly realistic. Judicial elections, a mechanism that creates public accountability in states following that practice, would require a constitutional amendment for federal judges. Appointing non-lawyers to the Supreme Court might help—depending on whom—but has never been done. Greater geographic diversity and reaching beyond the Ivy League cabal are promising, but recall that the 20th century pantheon of activist judges included sons of the South (Hugo Black, Tom Clark), Midwesterners (Harry Blackmun, John Paul Stevens), and graduates of non-elite law schools (Thurgood Marshall).
Graduates of state-run law schools are not immune to the siren song of the elite legal culture, as demonstrated by Earl Warren, who attended the same institution (Berkeley) as two of the California Supreme Court justices removed by the voters in 1986 due to their persistent judicial activism, Rose Bird and Cruz Reynoso. I can attest from my own doleful experience with my alma mater, the University of Texas School of Law, that many state-run schools have become social justice academies. Alas, graduating from a place like Texas is no assurance of intellectual diversity.
Finally, appointing Supreme Court justices from the ranks of state courts is not a panacea. Some of the worst justices in recent decades previously served on state courts: David Souter, Sandra Day O’Connor, and William Brennan. In fairness, Reynolds also makes some practical suggestions, such as appointing military veterans (Sen. Tom Cotton comes to mind), and qualified candidates who do not fit the current model of “judicial thoroughbreds.” Although our highly-politicized judicial confirmation process would make such innovations difficult, the only way to break out of the bubble is to pop the bubble, which would require the nomination of an atypical candidate with serious credentials but who doesn’t fit the current mold.
Sadly, inertia and special interest politics make the prospects for reform very dim. Given the partisan controversy surrounding the confirmation of Neil Gorsuch—who was exceptionally well-qualified and straight out of Central Casting—imagine the madness that would ensue if President Trump nominated someone “unconventional,” such as Chapman University law professor John Eastman.
As Reynolds explains, the over-arching problem is that
since the mid-twentieth century, the federal courts have become, in essence, our nation’s moral umpire when it comes to the pressing social questions of the day. This use of the courts itself reflects a Front Row approach, removing decisions from the masses and placing them in the hands of educated elites…. A muscular, unelected Supreme Court enforcing a “living Constitution” that conveniently reflects the prejudices of the elites, without concern for the vagaries of elections and popular sentiment, represents a particularly intrusive form of elitism.
Reynolds has eloquently framed the problem, and begun a dialogue regarding the solution. It is a long-overdue conversation that our republic dearly needs to have.