Is the High Court too Cloistered?

One of the reasons that the U.S. Supreme Court has nine justices deciding every case (save for the rare recusal) is to ensure that a variety of experiences and backgrounds are represented in every ruling. Historically, the High Court has included lawyers from private practice, academia, lower federal courts, state courts, Congress, and state and local government. 

And because Supreme Court vacancies don’t occur very often, the Court generally often represents some generational and age diversity. Today’s longest-serving justice, Antonin Scalia, was appointed 24 years prior to the most junior justice, Elena Kagan. When Justice Scalia first joined the court in 1986 after an already long legal career, Kagan was just finishing law school, and neither of them had ever heard of the Internet, email, cell phones, or a newborn baby named Lindsay Lohan.

A recent report compiled by University of Tennessee law professor Benjamin Barton, however, shows that the current version of the Supreme Court is perhaps one of the most statistically unique in history. Barton found that the justices on the current court spent less time in private practice (or as trial judges or politicians) than any prior group of justices. Although the average high court justice spent 17 years in private practice, Barton notes that the average for the current court is only six years, with Justices Stephen Breyer and Samuel Alito never having worked in the private sector, the only two justices in history who can make that claim.

Barton reasons that the lack of private practice and trial judging experience, combined with the current justices’ many years of teaching in law schools, amounts to “cloistered and neutral experiences” that “offer limited opportunities for the development of the most critical judicial virtue: practical wisdom.”

He might be right, but our high court justices will always have deficiencies in their collective backgrounds.  It would be virtually impossible to find nine lawyers with significant practice experience in maritime law, bankruptcy law, civil rights law, constitutional law, employment law, federal criminal law and all the other substantive areas a high court justice is likely to encounter during an average tenure, not to mention prior experience in government, academia, politics and state and local courts and diversity in ethnicity, education, religion, geography, etc. 

Actually, the real challenge is to elevate a group of reasonably diverse justices who all are demonstrably smart enough and ever motivated to dig deeply and ask the right questions or order to reach a wise and informed decision.  And when they don’t, there are plenty of people – practicing lawyers, law professors, lower court judges, and their dissenting colleagues, among others – who are quite happy to make sure everyone else knows it.

Posted: 3/19/2012 6:23:08 AM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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