Thursday, April 15, 2010

Are There Too Many Judges on the Supreme Court?

I want to thank Professor Hendler for his warm welcome and the invitation to post on this blog. It really is an exciting time to be studying the Supreme Court.

I want to elaborate on a few points from my San Francisco Chronicle article, which Professor Hendler posted below. As a political scientist, my primary interest is not so much in who President Obama should be appointing to the Supreme Court, but in what influence different types of nominees are likely to have on the Court.

For example, right now we have an unusual circumstance in which all nine Supreme Court justices (including Justice Stevens) was a sitting federal judge at the time of appointment. As a political scientist, I want to know what happens (if anything) when there is so little diversity in the professional qualifications of the justices. Would it matter if President Obama appointed another sitting federal judge, instead of someone from the political branches of government? In previous decades, presidents used to seriously consider governors, senators, and even former presidents for the Court. Now it has become much less common.

I think there are at least three consequences to this trend. The first two I discuss in the article. I think there is a real problem if justices come to the Court without any sense of what the policy impact of their decisions is likely to be. Without political experience, justices may have no foundation for understanding how their decisions will affect the lives of the people who must abide by their judgments. It surely helped Chief Justice Earl Warren, as the former governor of California, to understand how local school boards were likely to react to Brown v. Board of Education or how local police forces where likely to respond to Miranda v. Arizona. Without this type of practical experience, justices might end up writing decisions that are out of touch with the lives of Americans.

Second, justices who lack political experience might be less skilled at forging the coalitions that are necessary for the Supreme Court to conduct its business. It takes a majority of five justices to reach a decision, and it requires five votes to agree upon a majority rationale. Most federal appellate judges sit on tribunals with no more than two other judges, only occasionally meeting in larger groups. Politicians, however, must routinely work with other actors to make policy. A distressing number of Supreme Court decisions in recent years have had no majority rationale, including the landmark Seattle School District Case, which involved the use of race in school assignments. These are important cases, and we need the Court to be able to speak with one voice. Perhaps the justices would be more capable of doing so if they were skilled at political negotiation.

A third problem, which I do not discuss in my article, relates to research conducted by political scientists Lee Epstein, Jeff Segal, Andrew Martin, and Kevin Quinn (linked here). They find that lower court judges are actually more likely to affirm lower court opinions than judges with other backgrounds. What is more, justices have a particular bias for their home circuit.

In the next few weeks, I look forward to having discussions about these and other topics related to the appointment process. Feel free to email me with any questions that you have (


Margaret Steinfels said...

Your question about diversity is an interesting one. As you know, other diversity questions have come up. For example, the current crop of Justices are all graduates of Harvard and Yale. Does it matter? Are all law schools created equal? Is the current roster the result of professional and social networks? Another question: Do SC Justices have to be lawyers? And then, Justice Steven's departure leaves the Court without a Protestant. Does the Court need one? Or a Buddhist, or Hindu?

Arthur S. Hayes said...

We're not likely to see a former politician nominated any time soon because of Chief Justice Earl Warren's legacy, or at least how his legacy is perceived by the right wing. I believe the right wing believes ex-politicians are too likely to "legislate" from the bench.

Of course, many right wing judges are activists. They interpret the law to conform to their ideological views. (See Citizens United v. Federal Election Commission and for stimulating discussion.)

Nevertheless, I think 10 to 15 years from now Obama might be seated on the high court. That is, of course, if he serves two terms without scandal and Dems have the White House and a majority in the White House at the time. (Can a Kenyan-born individual sit as a U.S. Supreme Court Judge? Just kidding.)

Re: Steinfels questions.
Yes. It matters that all the justices are Harvard and Yale grads. Elitism does not necessarily equal excellence. Though all law schools are not created equal, there are highly accomplished grads from the top 25 law schools or so.

(See "From the beginning of the 20th century, every President who has seated a Supreme Court justice has picked at least one Ivy League graduate."

Nothing in the Constitution says you have to be a lawyer to sit on the Court.
"In total, of the 111 Justices appointed to the Court, 46 have had law degrees, an additional 18 attended some law school but did not receive a degree, and 47 received their legal education without any law school attendance."

Clarence Thomas is an example of how superficial diversity can backfire. We need to look beyond a candidate's religion, class or ethnicity to find true viewpoint diversity. I'm sure there is a lesbian woman of color from a working class poor background who worships at her local ashram that would send a mentally challenged minor to the death chamber. Suffering does not necessarily ennoble.

Robert J. Hume said...

Historically, diversity has been important in a number of respects besides just professional diversity. No doubt the choice of Sotomayor was intended (in part) to bring racial diversity to the Court.

Religious diversity seems to be less important to presidents than it once was. How else to explain the fact that there are now six Catholics on the Court? I doubt that Obama is seriously thinking about maintaining a “Protestant seat.”

That doesn’t mean religious diversity isn’t important—it just is not important in the ways that we have traditionally thought about it. As one of the students in my Law & Society course said the other day, imagine if Obama were to appoint a Muslim to the Court. Or a practitioner of Santeria? Or an avowed atheist? There are still many frontiers when it comes to religious diversity.

Arthur S. Hayes said...

Unfortunately, the relevance of the religious orientation of a High Court nominee has always matter in the way your student’s hypothetical implies. For most of the 20th century, non-Protestant candidates—Jews and Catholics—raised many of the irrational concerns that a nomination of a Muslim would today. For instance, the 1916 nomination of Louis Brandeis, the first Jewish nominee:
Wilson's nomination of Brandeis to the Supreme Court on Jan. 28, 1916, aroused a dirty political fight. Six former presidents of the American Bar Association and former president of the United States William Howard Taft denounced Brandeis for his allegedly radical political views. Some anti-Semitism was involved, for Brandeis was the first Jew ever nominated for America's highest court. Finally, however, the fight was won in the Senate, and Brandeis took his seat on June 5, 1916, where he served with distinction until Feb. 13, 1939. —