fbpx

“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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 06, 2018 at 09:03:52 am

Good Catch

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on March 06, 2018 at 09:36:35 am

Obergefell was the apex of this arrogant elitism. Kennedy's majority opinion said, in effect, that the only reason homosexual marriage was prohibited was bigotry -- and dammit, he intended to change that!

I think that states should be permitted to certify all federal judges whose decisions affect them, and that includes all SCOTUS judges. The opinions and rulings of uncertified judges would be ignored.

That would indeed result in different rules among the states. Perhaps a little confusing and inconvenient, but still far better than the disaster we have now, and certainly much more responsive to the opinions, values, and voices of the citizenry.

read full comment
Image of Steve Levy
Steve Levy
on March 06, 2018 at 09:36:40 am

My apologies in advance to any my comments might offend but I have LONG held that lawyers are the essence of what one Mr. James Madison spoke of in The federalist #47.

“No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to everyone that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.”

read full comment
Image of Earl Carter
Earl Carter
on March 06, 2018 at 10:12:11 am

Unfortunately, a prolific and stellar intellect who writes clearly and with uncommon common sense, Thomas Sowell, is now too old and would not be around long enough to shift the dynamic. If he had been nominated instead of Souter, the US would have been a much better place now than it has become.

read full comment
Image of geokstr
geokstr
on March 06, 2018 at 10:13:03 am

There needs to be an infusion of Jacksonian rebuffing to the court. Whenever it makes law it should be put in its place by one or both of the other branches, preferring the executive for the speed at which it can react and the legislative for the power it wields.
It is wholly the judiciary's wandering into legislative territory that has created this mess.

read full comment
Image of Mike Mahoney
Mike Mahoney
on March 06, 2018 at 10:15:12 am

I wholly concur! And it started with Marbury vs Madison!

read full comment
Image of Earl Carter
Earl Carter
on March 06, 2018 at 10:28:12 am

The fundamental problem is the power of the judiciary, not the ideological composition of the judicial caste. This power has three supports. First, too many laws, the result of the uniquely American virtue of "productivity," which assimilates legislation to steel production and evaluates legislators and legislatures by the quantity of legislation they churn out. Second, undue veneration of the common law method. In the 14th century it was real progress for the judicial caste in medieval England to undertake lawmaking in the name of making "the law" uniform throughout the land in support of a central, national government which itself represented historical progress at that time. Now, the reverse is true. Common law--the law of liability--only ever develops in one direction, that of "finding" more people liable for more things to which they have an increasingly remote and tenuous connection. Third, the "presumption of a valid claim" instituted by the too-liberal rejection of FRCivP Rule 12(b)(6). The courts take it upon themselves to "help" plaintiffs by the presumption that claims are valid. Talk about a conflict of interest! A judiciary that rejected more claims would perforce reduce its own power.

We could go a long way toward reducing this de facto power of the judicial caste by repealing the law/doctrine of "sovereign immunity," a doctrine the arguments in favor of which have always struck me as patently self-serving and unconvincing. Once the government were forced to live according to the same legal regime, the same liability regime, as the rest of us, it would not take long for Congress to start eliminating various grounds for liability and thereby removing the courts from the center of social and political life to the periphery.

read full comment
Image of QET
QET
on March 06, 2018 at 10:51:34 am

I think the Congress should just take up the powers the Constitution grants them and limit the damage rogue federal judges can do! Such as limiting the effects of Ninth circuit rulings to that jurisdiction only!

read full comment
Image of Earl Carter
Earl Carter
on March 06, 2018 at 10:52:38 am

EXCELLENT idea!

read full comment
Image of Earl Carter
Earl Carter
on March 06, 2018 at 12:37:13 pm

For what it's worth:

By rule abolish stare decisis in constitutional issues and require that constitutional issues shall be considered de novo. [This actually works quite well in Germany] Further, provided that the judgement of the Supreme Court in decisions that involve construing the Constitution shall bind only the non-governmental parties to the case [this will limit the Court's ability to capture an agency] unless and until Congress shall by legislation approved by 2/3 vote of both Houses adopt the decision of the Supreme Court.

If that is not enough, then remove constitutional issues from the Supreme Court's jurisdiction and create a separate constitutional court staffed by a rotating panel of judges.

If that is not enough, then limit the jurisdiction of the federal district to the matters enumerated in Art. 1, § 8 and require that all other matters first be raised and adjudicated in state courts. Appeal of federal issues would then be to the existing circuits.

read full comment
Image of EK
EK
on March 06, 2018 at 13:13:34 pm

Sowell is an economist, not a lawyer, but as the article suggests, that would be a feature, not a bug. Since the court often has to deal with cases involving scientific, technical, or economic issues on which it has no expertise (particularly in cases regarding environmental issues) it would well serve the Supreme Court to have someone like that on board.

read full comment
Image of sestamibi
sestamibi
on March 06, 2018 at 13:22:59 pm

Yes, if I recall correctly, the decision was based on the belief that same sex marriages must be permitted because the participants would be unhappy if they couldn't.

The "bigotry" aspect (or as they called it, "animus") was also addressed in Romer vs. Evans, one of the worst decisions ever made, in which the State of Colorado's Amendment 2 to its state constitution, adopted by the voters and forbidding local governments from adopting anti-discrimination ordinances "protecting" homosexuals.

It gets yet worse. I read just recently that a couple of federal courts have ruled that federal anti-discrimination laws include homosexuals, even though this protection was explicitly not adopted by Congress.

And yet. . . I find it hard to make the claim that the Supreme Court's rulings in these cases are out of sync with public opinion. I have come to believe that there's simply no idea too looney for the American public to accept in the name of "enlightenment", "social justice", or some other nonsense.

And as I predicted, some states that don't buy into this nonsense are looking into getting out of the marriage business entirely. Legislation is pending, for example, in Alabama, which would make marriage a completely private issue. Ironically enough, this is what the Left always said it wanted, but if it becomes a reality, watch for whining about marriage now being for "the rich" if it takes a contract lawyer to put it together (even though the poor haven't bothered with marriage for going on 50 years).

read full comment
Image of sestamibi
sestamibi
on March 06, 2018 at 14:19:39 pm

[C]reate a separate constitutional court staffed by a rotating panel of judges.

The idea of having constitutional issues resolved by a rotating panel has been proposed at various times, and even implemented in Austria. While commentators and the public greeted this innovation with enthusiasm, the practice proved extremely distracting to the litigants—and the jurists themselves eventually became quite dizzy and nauseous.

read full comment
Image of nobody.really
nobody.really
on March 06, 2018 at 15:03:52 pm

Can you give me any more information? Between 2014-16 I spent some time looking at the German constitutional court but I really don't know anything about the other European court systems.

read full comment
Image of EK
EK
on March 07, 2018 at 17:07:30 pm

Nobody Really is onto something: Putting all nine Justices on a "rotating panel" could, indeed, make the four oligarchs who are endemically "dizzy and nauseous" even more so and thus more prone to fall off before the conference vote.
Good guys win 5-0.

read full comment
Image of timothy
timothy
on March 08, 2018 at 11:12:02 am

The judges on the panel would be drawn from all of the Art. III judges, except the Supreme Court. The justices of the Supreme Court would be confined to their original jurisdiction and cases that don't raise constitutional issues.

read full comment
Image of EK
EK
on March 08, 2018 at 19:50:38 pm

And, it's possible.

The U. S. Supreme Court is the only major court in the entire United State where membership in the Lawyer's Union, otherwise known as the Bar, is not required, because the requirements are defined in the Constitution.

The judiciary is the biggest closed shop in the country.

read full comment
Image of bud
bud
on June 18, 2018 at 12:34:17 pm

One idea that has broad support on left as well as right is term limits for Article III judges. That would probably require a constitutional amendment. Therefore the first step would be a reform of Article V to make amendment feasible again. Then states could initiate a judicial term limits amendment as well as many other useful reforms to rein in the Leviathan state. See http://www.amendmentamendment.com

read full comment
Image of Timely Renewed
Timely Renewed
on December 27, 2018 at 06:01:28 am

[…] 6. “The Bubble” and the Judiciary: Is There a Solution?, Mark Pulliam, March 6, 2018 […]

read full comment
Image of Law & Liberty‘s Top Ten Posts of 2018
Law & Liberty‘s Top Ten Posts of 2018

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

Related