Diversity and the Supreme Court, an Alternate Perspective

I usually don’t expect myself to agree with Dahlia Lithwick, who provides commentary on the Supreme Court for Slate Magazine.  But when I read her article The 2014 Supreme Court: An Ivy League Clan Disconnected From Reality, I wanted to stand up and applaud.

Here’s are some excerpts:

[H]aving covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for women, minorities, and workers. No, the real problem, I think, is that the Court as a whole has gotten too smart for our own good.

The current justices are intellectually qualified in ways we have never seen. Compared with the political operators, philanderers, and alcoholics of bygone eras, they are almost completely devoid of bad habits or scandalous secrets. This is, of course, not a bad thing in itself. But the Court has become worryingly cloistered, even for a famously cloistered institution. Every justice is unavoidably subjected to “public deference” when they ascend to the bench, as I heard Sonia Sotomayor describe it at a conference last June. Now, on top of that, today’s justices filter out anything that might challenge their perspectives. Antonin Scalia won’t read newspapers that conflict with his views and claims to often get very little from amicus briefs. John Roberts has said that he doesn’t believe that most law-review articleswhere legal scholars advance new thinking on contemporary problemsare relevant to the justices’ work. Ruth Bader Ginsburg, Scalia’s opera-going buddy, increasingly seems to revel in, rather than downplay, her status as a liberal icon. Kennedy spends recesses guest-teaching law school courses in Salzburg.

. . .

Paradoxically, the Court . . . has never looked more like the country whose disputes it adjudicates. It includes three women, an African American, the first Hispanic, two Italian Americans, six Catholics, and three Jews. On the federal bench, President Obama has appointed more women, minorities, and openly gay judges than any president in history.

But while we have gained diversity of background, we haven’t gained diversity of experience. A study released in February revealed that 71 percent of Obama’s nominees had practiced primarily for corporate or business clients. The Supreme Court is even more homogeneous, because the modern confirmation gauntlet only lets one kind of person through. Post-Robert Bork, a nominee must not have too obvious an ideological agenda, as some judges and almost all elected officials do. Post-Harriet Miers, a prospective justice must possess not just a stellar résumé but also a track record of judicial rulings and legal writings from which future decisions can be confidently deduced.

. . .

When the next court vacancy occurs, there will be lists of brilliant, Yale- and Harvard-trained jurists to choose from. But there will also be many accomplished lawyers toiling in elected office and legal-aid clinics and state-school faculties. Progressives need to identify those prospects and to push them forward. The alternative is ceding the court to ever-more dazzling minds, while seeing less of our own realities in its jurisprudence.

Now, I suspect that Lithwick and I would have disagreements if we sat down together to list, say, the 10 worst Supreme Court decisions in history (though perhaps we could probably both start with Dred Scott and Plessy).  But I’m right with her when she talks about a judiciary that is, by and large, ever further disconnected from the realities of the practice of law and the many other things that lawyers do.

Take the current Court, as Lithwick does.  Here are brief summaries of the backgrounds of the justices:

Diversity and the Supreme Court, an Alternate Perspective
Seated from left are: Associate Justices Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Associate Justices Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing, from left are: Associate Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan. (AP Photo/Pablo Martinez Monsivais, File)

1. John Roberts.  Practiced in the Reagan and Bush Administrations; worked as a high level (read: Supreme Court) appellate lawyer in private practice; and served as a judge on the D.C. Circuit Court of Appeals.

2. Antonin Scalia.  Spent six years in private practice at a Cleveland law firm; worked as a law professor at the University of Virginia and University of Chicago; served as administrative counsel for federal agencies and as an assistant attorney general; and served as a judge on the D.C. Circuit Court of Appeals.

3. Anthony Kennedy.  Worked in private practice for 12 years (running his father’s old law firm) while teaching law at McGeorge Law School at Pacific University; and served as a judge on the Ninth Circuit Court of Appeals.

4. Clarence Thomas.  Served as an Assistant State Attorney General in Missouri; in-house counsel with Monsanto; practiced law in Reagan and Bush (I) administrations; and served as a judge on the D.C. Circuit Court of Appeals.

5. Ruth Bader Ginsburg.  Worked as a research associate at Columbia Law School; was a professor at Rutgers Law School; and worked as general counsel for the ACLU.

6. Stephen Breyer.  Worked as a professor at Harvard Law School; served in various special appointments to government commissions and bodies; and served as a judge on the First Circuit Court of Appeals.

7. Samuel Alito.   Worked briefly as an assistant US attorney; served as Assistant Solicitor General under Rex E. Lee; worked as an U.S. Attorney in New Jersey; and served as a judge on Third Circuit Court of Appeals.

8. Sonia Sotomayor.  Worked as an assistant district attorney; operated a solo law practice; worked in private practice as a commercial litigator; and served as a district and circuit judge on the Second Circuit Court of Appeals.

9. Elena Kagan.  Spent a brief stint in private practice in Washington D.C.; worked as a law professor at Chicago and Harvard; and practiced in Clinton and Obama administrations, with the latter as United States Solicitor General.

I learned quite a bit compiling the above list.

For example, I had no clue that Justice Sotomayor had operated a solo practice out of her home, which made me smile inside for the solo attorneys of the world (who often toil in the mundane details of the law and are generally viewed with contempt by better-resourced lawyers).  Also, I hadn’t known that Justice Ginsburg had been general counsel for the ACLU or that Anthony Kennedy had operated his father’s old law firm (though perhaps not actively) right up until the time he was appointed to the Ninth Circuit.

Honestly, I found that there is more diversity among the practice experience or the Justices than I suspected there was, but there’s still not much.  Their law school educational backgrounds are essentially identical.  And when it comes to professional experience, you have essentially two tracks — big firm private practice for two or three years or government practice (read: federal or state prosecution) prior to a law school professorship, each track moving onto a federal appellate judgeship.

In these types of positions there is often relative little opportunity to confront the mundane (at least to many attorneys!) day-to-day details of the practice of law as it touches the more ordinary among us — the employee who needs someone to review the separation agreement their employer is pressuring them to sign; the homeowner who had a lien placed on their house after they refused to pay the contractor’s inflated bill; the small business owner who received a huge fine notice from the state after their workers’ compensation insurance coverage unintentionally lapsed, the young adult accused of a DUI; the new landlord who needs help evicting a bad tenant, or the tenant served with an unexpected eviction notice; the couple negotiating who pays the mortgage payments upon divorce; or the unmarried new father trying to recover custody or visitation rights lost because of unfamiliarity with an intimidating legal system.

Where is this type of experience in our judiciary?  In many way this diversity in experience is every bit as significant as racial or gender diversity.  It barely exists in our Supreme Court, but that’s not the only place where it’s missing.

Increasingly, it doesn’t exist in our federal judiciary at all.  And, in some urban areas, it’s rapidly disappearing from our state judiciaries (for years, the last refuge of practical legal experience) as well, as the search process becomes ever more focused on resume as a proxy for uber-competence.

Want a judiciary of Atticus Finches (to the extent such attorneys exist at all)?  Too bad.  Because it’s hard to

A scene from To Kill a Mockingbird.  Image courtesy of Wikipedia.
A scene from To Kill a Mockingbird. Image courtesy of Wikipedia.

imagine any way an attorney who would take payment in corn or potatoes (or, to modernize, perhaps mechanics or other services) could pass the resume test required for a judgeship these days.

Now, no one wants an incompetent or inexperienced judge.  I’m not advocating that we clamber to appoint the local DUI attorney to the Supreme Court.  And it is important to keep in mind that the attorneys who work a case often bring practical experience and perspectives before the judge who hears it.

But I certainly do believe that in law, as in other professions, there are different ways in which competence (or incompetence) and experience (or inexperience) manifest themselves.  While it’s true that the small firm or solo lawyer may at first be overwhelmed when presented with their first taste of complex anti-trust or intellectual property litigation, I can tell you that lawyers who have spent their years negotiating complex deals or in complex class-action litigation are often similarly mystified and ill-prepared when first presented with emotional messiness and ambiguity of a guardianship petition or eviction case.

It might be time to step back and consider the extent to which our ever increasing obsession with a certain type of resume as the principal proxy for competence might be excising alternative perspectives and profitable experience from our courtrooms.

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