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A blog written for those whose interests more or less match mine.

The most frightening thing about the Supreme Court: Narrow range of life experience

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Dahlia Lithwick has a thought-provoking article in The New Republic:

Under Chief Justice John Roberts, the Supreme Court has emerged as one of the most ideologically aggressive in decades, and its rightward trajectory is usually attributed to this simple fact: a majority of the justices are very conservative. Today’s Court contains, according to one study, four of the five most conservative justices to sit on the bench since FDR; Anthony Kennedy, the putative swing vote, is in the top ten.

But having 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.

Before the Affordable Care Act cases were heard in 2012, aspiring spectators lined up for days (mostly in vain, because seats are so limited). Meanwhile, this Court goes to considerable lengths to keep itself at oracular remove. The texts of many of the justices’ speeches are not publicized. Cameras and recording devices remain barred from oral arguments, and protesters may not even approach the spotless white plaza outside. But the most symbolically potent move came in 2010, when the justices closed off the giant bronze doors at the front of the building, above which the words EQUAL JUSTICE UNDER LAW are engraved. Today, the public must enter the building from the side, beneath the marble staircase, through dark, narrow entrances feeding into metal detectors. It is a fitting setup for a Court that seems to want neither to be seen nor to really see us.

Paradoxically, the Court that has gutted minority voting rights in Shelby County and limited women’s access to birth control in Hobby Lobby 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.

The result has been what Professor Akhil Reed Amar of Yale Law School calls the “Judicialization of the Judiciary,” a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel: elite schools beget elite judicial clerkships beget elite federal judgeships. Rinse, repeat. All nine sitting justices attended either Yale or Harvard law schools. (Ginsburg started her studies in Cambridge but graduated from Columbia.) Eight once sat on a federal appellate court; five have done stints as full-time law school professors. There is not a single justice “from the heartland,” as Clarence Thomas has complained. There are no war veterans (like John Paul Stevens), former Cabinet officials (like Robert Jackson), or capital defense attorneys. The Supreme Court that decidedBrown v. Board of Education had five members who had served in elected office. The Roberts Court has none. What we have instead are nine perfect judicial thoroughbreds who have spent their entire adulthoods on the same lofty, narrow trajectory.

A Supreme Court built this way is going to have blind spots. But right-wing legal and political groupswho are much better at the confirmation game than their equivalents on the lefthave added a final criteria that ensures the Court leans strongly in their favor. They have succeeded in setting the definition of the consummate judge: a humble, objective, nearly mechanical umpire who merely calls “balls and strikes,” in Roberts’s insincere but politically deft phrasing. This lets conservatives sell nominees who are far more conservative than liberal nominees are liberal. A Democratic-appointed justice makes the short list by having her heart in the right place, but will be disqualified for heeding it too much. . . .

Continue reading.

Written by Leisureguy

14 November 2014 at 8:47 am

Posted in Education, Law

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