Judgeships (edited, to add some things)
Aug. 3rd, 2005 05:57 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumDebate is going to go on about this.
But this article from the Atlantic Online raises an interesting, and perhaps fundamental point:
The Justices of the Supreme Court not only aren't like you and me, they aren't like other judges.
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.)
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....
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....
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.
This lack of connection with the everyday may be why some of the more recent decisions like Castle Rock v. Gonzales where the court (in a Scalia opinion) held the police didn't have to enforce a restraining order (the use of the word shall in the law is the wiggle room the majority found to say the property right didn't exist to file a suit) are legally justifiable, but at odds with what seems to be common sense, and the, apparent, legislative intent of the law.
In a narrow sense this is, perhaps a legitimate holding (though Stevens, in dissent points out a similar wording in a contract for private security would be seen as a property right, and so the private company would be liable. As this was a case about personal safety, not merely material possessions that seems an interesting distinction for the Court to be hanging its hat on. Then again this is Scalia, who's never met a "strict interpretation of the text" which didn't agree with his personal beliefs).
But it may be that not living, nor really inhabiting the same world the rest of us do (where matters of life and limb are real, not abstract, issues) is part of what leads to this. The Court is an ivory tower. Tenure insulates, as it should (the sketch where a newly elected Thomas is catering to the other justices, until someone points out he isn't subject to anyone's approval for his continued presence, at which point he gets what would be called, "uppity," in some circles, touches on a very real point about the Court), but to take those we grant such tenure to, from a class already tenured, is to double the insulation.
That much insulation may be ill. Not that these aren't thoughtful people, but that may be the very crux of the problem. Everyone has heard the jokes about theory and practice, well the lawyers we are asking to set the boundaries between them haven't had much practice.
But this article from the Atlantic Online raises an interesting, and perhaps fundamental point:
The Justices of the Supreme Court not only aren't like you and me, they aren't like other judges.
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.)
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....
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....
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.
This lack of connection with the everyday may be why some of the more recent decisions like Castle Rock v. Gonzales where the court (in a Scalia opinion) held the police didn't have to enforce a restraining order (the use of the word shall in the law is the wiggle room the majority found to say the property right didn't exist to file a suit) are legally justifiable, but at odds with what seems to be common sense, and the, apparent, legislative intent of the law.
In a narrow sense this is, perhaps a legitimate holding (though Stevens, in dissent points out a similar wording in a contract for private security would be seen as a property right, and so the private company would be liable. As this was a case about personal safety, not merely material possessions that seems an interesting distinction for the Court to be hanging its hat on. Then again this is Scalia, who's never met a "strict interpretation of the text" which didn't agree with his personal beliefs).
But it may be that not living, nor really inhabiting the same world the rest of us do (where matters of life and limb are real, not abstract, issues) is part of what leads to this. The Court is an ivory tower. Tenure insulates, as it should (the sketch where a newly elected Thomas is catering to the other justices, until someone points out he isn't subject to anyone's approval for his continued presence, at which point he gets what would be called, "uppity," in some circles, touches on a very real point about the Court), but to take those we grant such tenure to, from a class already tenured, is to double the insulation.
That much insulation may be ill. Not that these aren't thoughtful people, but that may be the very crux of the problem. Everyone has heard the jokes about theory and practice, well the lawyers we are asking to set the boundaries between them haven't had much practice.
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no subject
Date: 2005-08-04 03:49 am (UTC)Also, many of these people in the "class already tenured" that you speak of will have come from similarly sheltered childhoods. (Not all, of course.) One of the disturbing things about attending a top-tier law school is the sneaking suspicion that some of the most ivory-tower bound classmates will end up on the bench somewhere making life and death decisions about people whose experience falls outside their comprehension.
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Date: 2005-08-04 04:13 am (UTC)no subject
Date: 2005-08-04 01:15 pm (UTC)no subject
Date: 2005-08-04 02:29 pm (UTC)Appeals are a world removed, where theory rules and the cases turn on precendent and prodcedural issues. Yes, great things may be decided (because those cases set precedents; unless they don't, see Bush v. Gore, but the facts aren't in question, just the meaning of them