I've been working on some questions in case the makers of Trivial Pursuit ever decide to put forth a Supreme Court edition: Now that Sandra Day O'Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)
Flashbacks: "Looking Back at Brown v. Board of Education" (May 17, 2004)
Articles from 1954 and 1960 offer a look at how the Supreme Court's landmark desegregation ruling was initially received.
The answers would have been starkly different fifty years ago. Five of the nine justices who decided Brown v. Board of Education, in 1954, had once worked as trial prosecutors, and several had substantial hands-on experience in commercial litigation. More famously, that Court included a former governor, three former senators, two former attorneys general, two former solicitors general, and a former SEC chairman.
That Court, in other words, was intimately familiar with the everyday workings of the political and judicial systems, and with the beliefs and concerns of everyday Americans. Not so the Court that recessed in June, eight of whose members (in addition to their long tenure in the splendid isolation of the Supreme Court's marble palace) have been drawn from judgeships on appellate courts, and sometimes from academic law before that—places already far removed from the hurly-burly of our judicial and political systems. The current justices are smart and dedicated. But they're not like you and me.
Debates over the Court's "balance"—ideological, ethnic, gender—will doubtless heat up as Congress considers the current vacancy. Yet there is likely to be little discussion about the greatest imbalance—the one in the collective real-world experience of its justices. The Court's steady homogenization by professional background has gone largely unremarked.
Should we be concerned? After all, the Supreme Court is supposed to sit above politics and apart from popular whims. But when a large majority of the Court's justices have never cross-examined a lying cop or a slippery CEO, never faced a jury, never slogged through the swamps of the modern discovery process, something has gone wrong. As the Court has lost touch with the real-world ramifications of its decisions, our judicial system has clearly suffered.
The Court's slow disengagement from practicality was visible by the 1970s, when, for example, in a well-intentioned effort to protect students from unwarranted suspension and tenured public school teachers from arbitrary dismissal, the Court issued a series of decisions requiring hearings before such action. The justices presumably imagined simple, cursory hearings to guard against egregious abuses of power. Predictably, that's not what happened. Hearings quickly became clogged with lawyers, witnesses, trial-type formalities, multiple administrative and judicial appeals, and years of delay. To avoid such ordeals, many principals and administrators have simply stopped trying to remove thuggish students and inept teachers from our schools.
Over time the justices have failed ever more conspicuously to understand what messes their decisions might make. In 1997, while forcing Bill Clinton to give a sworn deposition in the Paula Jones sexual-harassment lawsuit, the Court stunned litigators and trial judges by predicting that this was "highly unlikely to occupy any substantial amount of [President Clinton's] time." Only Justice Stephen Breyer seemed to appreciate that the realities of modern discovery practice "could pose a significant threat to the President's official functions." Sure enough, the district court ordered Clinton to answer detailed, tangential questions about his relations with various women. The rest is history.
In a string of decisions since 2000 the Court has thrown the criminal-justice system into utter confusion by repeatedly changing the rules on the roles of judges and juries in sentencing, while providing minimal guidance on how the new rules should be implemented. In response to the rulings, thousands of current inmates have requested re-sentencing, to the consternation of federal trial and appellate judges, who are all over the lot on how to handle these requests. (The judges also have major differences of opinion on how much weight they should now give sentencing guidelines in new cases.) We'll be hearing more about this confusion—it's a clear recipe for an onslaught of additional appeals down the road, which will further tax our already overburdened criminal-justice system.