Then there's the Court's recent Janus-faced pair of rulings on governmental displays of the Ten Commandments. The gist: recently installed, framed copies must be stripped from courthouse walls; forty-year-old, six-foot-high monuments can stay on the grounds outside. The logic: well, for that you'll have to read ten separate opinions totaling 140 pages. In announcing part of this mess, Chief Justice William Rehnquist said, "I didn't know we had that many people on our Court." Chief Justice John Marshall once observed (in Marbury v. Madison) that "it is the province and duty of the Judicial Department to say what the law is." Government officials and lower-court judges often find the law difficult to ascertain today. But at least they do know—in minute detail—what each justice thinks it ought to be.
As our Supreme Court justices have become remote from the real world, they've also become more reluctant to do real work—especially the sort of quotidian chores done by prior justices to ensure the smooth functioning of the judicial system. The Court's overall productivity—as measured by the number of full, signed decisions—has fallen by almost half since 1985. Clerks draft almost all the opinions and perform almost all the screening that leads to the dismissal without comment of 99 percent of all petitions for review. Many of the cases dismissed are the sort that could be used to wring clear perversities and inefficiencies out of our litigation system—especially out of commercial and personal-injury litigation.
Traditionally the Court decided major questions of federal commercial law, adapting to the changing nature of business and the increasing complexity of litigation. Yet according to Michael Greve, the head of the American Enterprise Institute's Federalism Project, this Court has "resolutely refused to tackle the inconsistencies and absurdities that, after decades of neglect, afflict nearly every area of commercial litigation." One reason, Greve argues, is that with the exception of Justice Breyer, "the Court has absolutely no idea what business litigation in America now looks like."
What accounts for the Court's drift? There are two factors—one political and one biological. Politically the appointment of Supreme Court justices has become more contentious as it has focused on a small number of polarizing issues—most notably abortion. The ideal candidate today is predictable enough to suit the president and his political base, yet not so predictable as to be an easy target for critics. Appellate-court judges simply fit the bill better than other candidates. Their legal opinions signal ideological leanings (providing more of a track record than would exist for, say, a prominent litigator or a prosecutor). But because they are bound to follow Supreme Court precedents, they ordinarily don't say whether they would overturn those precedents if, as justices, they got the chance. (Elected officials, in contrast, must take specific stands on abortion and other hot issues—all but disqualifying them from consideration for the Court.) Past justices took many roads to the Supreme Court. Today, almost invariably, there appears to be just one.
Moreover, that road is receding further in the rear-view mirror. Longer life spans and justices' increasing reluctance to retire have raised their average tenure from fifteen years before 1970 to twenty-five years since then. Until this summer no justice had retired in eleven years. Real-world experiences gained before their years on the appellate and Supreme courts have become distant memories for today's justices.
Will future appointees bring more diversity of experience? Alas, the political incentives to pick appellate judges seem likely to persist. But one proposed reform—which, after a phase-in, would limit judicial terms to eighteen years, and allow each president to appoint a new justice every two years—would create more opportunities to diversify the Court over time.
The proposal, which is backed by some forty-five leading legal scholars, both liberal and conservative, would (among other benefits) ensure frequent and regular infusions of new blood, and with it more recent experience with the practical aspects of judicial decisions. And because more appointments would lower the political stakes for each one, presidents might be willing to look beyond the usual suspects.
That would be welcome. Quietly our Supreme Court has become a sort of aristocracy—unable or unwilling to clearly see the workings, glitches, and peculiarities of the justice system over which it presides from such great altitude.