By: James G. Apple, Editor-in-Chief, International
Judicial Monitor and President, International Judicial Academy
Recently a popular magazine in the United States (print version)
that publishes articles on a variety of topics that are or should be of
interest and concern to the general populace featured in its “Dispatches: Ideas
and Provocations” section an excellent commentary about the Supreme Court of
the United States. The article, written by Yale Law School professor Akhil Reed
Amar, was somewhat unique in that this particular magazine, The Atlantic,
and others similar to it, do not usually publish articles about judges and
courts in general, and about the Supreme Court in particular. The subject of
the article was not about the Court’s decisions or its jurisprudence, but about
the make-up of the Court, the backgrounds of the nine justices who make up the
Court and the type of person they represent.
The use of the word “type” in the singular is intentional,
because the article was about the lack of diversity among the current justices
and the sameness of their backgrounds. Diversity here does not mean race or
gender; there is one black justice and three women justices who sit on the current Court.
The lack of diversity refers to their professional backgrounds. The discussion
in the article centers around the important issue of what should a court
reflect by way of professional background of its members.
The main thrust of the magazine article is that the justices who currently sit on the Supreme Court, all nine of them, have the same or similar backgrounds, as indicated below. The question arises: Is this a situation or characteristic of
the Supreme Court good or healthy, or is it a distraction and one that is
detrimental to the proper workings of the Court? There is a corollary to this
question: is such a situation good for any appellate court in the United States
and elsewhere in the world.
An even superficial examination of the backgrounds of the
nine justices reveals the problem: all nine are graduates of “elite” colleges
and elite law schools, particular those colleges and law schools in the “Ivy
League.” There are only six colleges represented on the Court, all of the elite
variety (Harvard, Princeton, Cornell, Stanford, Georgetown, and Holy Cross).
With the exception of Stanford, located in California, all of the schools are
located on the eastern seaboard. Only two law schools are represented on the
Court, Harvard and Yale (although Justice Ruth Ginsberg started at Harvard and
later transferred to Columbia). All members of the Court are former members of
U.S. courts of appeal. Only one justice has had any kind of trial experience.
Only of the justices has held a high ranking position in the executive or
legislative branches of the federal government or state governments (Justice
Elena Kagan served as Solicitor General of the United States. None have had any
significant political experience.
One court watcher also noted another characteristic of the
current Court. After the appointment of one member in 2006 (Justice Samuel
Alito), there were justices who grew up in four of the five boroughs of the
City of New York (a borough is a political subdivision of a city, much like a
county is a subdivision of a state), while four of the remaining five justices
grew up in large metropolitan areas or in the suburbs thereof. Truly rural
areas are unrepresented.
The Atlantic article contrasts the make-up of the
current Court with that of past Supreme Courts dating back to the early years
of the United States in the last part of the 18th Century. An
examination of the backgrounds of justices from early periods reveals a rich
variety of pre-Court experiences among many of the justices, rather than
sitting as an appellate judge, starting with the fourth Chief Justice John
Marshall, generally referred to as the “Great Chief Justice.” Chief Justice
Marshall was appointed to his position without ever serving as a judge in any
court. He was an officer in the Continental Army in the U.S. Revolutionary Was,
served in the Congress of the United States, and immediately before his
appointment served as U.S. Secretary of State. Other justices, including those
who are considered among the greatest justices, also reflect diverse
backgrounds. Examples are: one Chief Justice was the governor of one of the largest
states in the U.S. and never served as a judge before his appointment (Chief
Justice Earl Warren); one justice was a practicing lawyer who practiced law
continually up to the time of his appointment and who was known as the
“Peoples’ Lawyer” (Justice Louis Brandeis) and another justice, who never
attended college and only one year of a local law school became Attorney
General of the United States (Justice Robert Jackson). All four of these men
made exceptional contributions to the law of the United States.
The author of the magazine article posed the question: “Why
you may ask is any of this a problem? Why would we want ex-senators – or-ex
Cabinet members, or ex- governors, or other sorts of ex pols, for that matter -
on our highest court?” He answered his own question thusly:
While a bench overloaded with ex-pols would be
unfortunate, the Court would benefit from having at least one or two
justices who know how Washington works at the highest levels, and who
have seen up close how presidents actually think, how senators
truly spend their days, how bills in fact move through Congress, and so
on- in short one or two justices whose resumes resemble those of former
Secretary of State John Marshall, Hugo Black and Robert Jackson.
Think of it as portfolio diversification: The Court works best when its
justices can bring different perspectives to bear on difficult
legal issues. Constitutional law, done right, requires various tools and
techniques of argumentation and analysis. No single technique works best
across all constitutional questions that have ever reason or will
eventually arise.
International
Judicial Monitor