10/31/2022
The Credentialed Court: Inside the Cloistered and Elite World of American Justice, Benjamin H. Barton, Encounter Books, 2022.
The last time I wrote a book review was after reading Supreme Courtship by Christopher Buckley, the satire of a president facing a tough re-election campaign and the appointment of a Supreme Court justice. Fearing a misstep close to election day, he appointed the safest possible candidate, Judge Pepper Cartwright, the star of the nation's most popular reality courtroom show. Buckley takes an absurd event and then imagines its most logical consequences.
But is it really such an absurd event? Previous Supreme Court justices have been star professional athletes, newspaper publishers, and titans of industry, Byron White, Henry Baldwin and Thomas Johnson, respectively.
U.T. law professor, Benjamin H. Barton, does a deep dive in his new book, The Credentialed Court (Encounter Books), into the change over time of what it means to be “qualified” to sit on the nation’s highest court. Except for a couple of chapters that appear to be included just to satisfy peer review, it moves at a good clip and is quite readable.
The primary point that he makes is that the current selection process has achieved a Court with optical diversity at the expense of experiential homogeneity. In Barton’s words, “…we have replaced experiences that bring the Justices into contact with ordinary Americans with experiences that I consider to be elite, neutral and cloistered.”
Elite academic experiences at the highest level often result in either tenured law professorships or seats on the federal appellate bench. Academia and federal appellate judgeships have some things in common. Each profession has little contact with the public, hence the “cloistered” moniker. Each position also comes with lifetime tenure. Neither tenured professors nor appeals court judges have any real “boss.” That situation leads to a life filled with sycophants as their closest colleagues and little contact with ordinary Americans.
As a law professor, Barton has spent time in the faculty lounge. He has seen his share of nit-picking disputes common there. Thus, he is not surprised that many of today’s Supreme Court opinions run up the page count with numerous split votes, concurrences and multiple separate dissents. Barton thinks the court can do better.
The homogeneity of the current nominees has a number of familiar elements. Princeton, Yale and Harvard make up a full third of all undergraduate schools justices have attended since the court has existed. Harvard and Yale alone make up almost a third of all law schools attended by future justices. During the time between the death of Antonin Scalia and the appointment of Amy Coney Barrett, the court included only one justice who did not attend undergraduate at Stanford or an Ivy League school. From the appointment of John Paul Stevens in 1975 (Northwestern Law) until Amy Coney Barrett (Notre Dame Law), every justice attended either Yale, Harvard or Stanford law school.
Barton’s primary complaint is what has become a strict current progression to the Supreme Court from graduating from an elite law school, clerking for a Supreme Court justice, then either going into academia at an elite law school or attaining a seat on a U.S. Circuit Court of Appeals.
Members of today’s court spent significantly less time in private practice than previous generations. Over the history of the Court, previous justices spent on average 16 years in private practice. The current court: just 4.4 years. Barton points out that the current chief justice never filed a lawsuit, never addressed a jury, never cross-examined a witness, never took a deposition and never negotiated a deal. He never advised a client on a tax return, never engaged in a plea negotiation, never defended a restraining order and never finalized a divorce.
In Barton’s view, perhaps the greatest loss to experiential diversity is the loss of justices with political backgrounds as statesmen. Justices who have spent a significant amount of time persuading voters to cast a vote for them and then negotiating with their colleagues to pass legislation would add to the court a moderating influence that could result in greater unanimity in the case outcomes (or at least bring together disparate viewpoints, of which there are currently many).
Military service is another life experience currently in short supply. Oliver Wendell Holmes graduated from Harvard during the infancy of the Civil War. He entered the Union cause shortly after graduation. He was soon shot in the chest and taken out of action. He returned to action and was wounded at Antietam. After a second period of convalescence, he returned to battle only to contract dysentery. Then a cannonball fragment tore through his heel. His backpack blown off by another cannonball. All this before ever picking up a gavel. The current court has virtually zero military experience.
Contrast that with George Washington’s picks for the first Supreme Court. Most of his nominees had been involved in the drafting of the constitution they were destined to interpret. Some had battled the British. Many were entrepreneurs, risk-takers with real life experiences, including business failures. (See, James Wilson, who served on the first court and was subjected to debtor’s prison while still seated as a justice on the court).
Barton offers some proposals to broaden the experiences of the justices. Most of them focus on changes that would make service on the court more onerous. One of the most consistent complaints of the justices in the 18th and 19th centuries was the requirement that they ride circuits. That was before planes, trains and automobiles, before Hilton and Marriott. But the benefit of consistently putting the justices in touch with more ordinary Americans does make some sense.
