That opening on the court
May. 5th, 2009 12:46 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumI've not been paying a whole lot of attention to it.
What I do know, is I'd really rather not have one of the usual suspects get the nod. We have a court made up of Ivory Tower Academics. This is bad. The Court is asked to address all sorts of things, which have both legal aspects, and practical aspects in the real world. It behooves us to have justices who have spent some time in the real world.
Used to be that was the case. O'Connor had been a politician. Frankfurter had been an Ass't Secretary of war, and a prosecutor, before he became a professor at Harvard. Earl Warren was Governor of California, William Douglas was Chairman of the S.E.C. and Lewis Powell President of the U.S. Bar Association.
Powell was appointed to the bench in 1972. He was the last justice to have served in private practice. Hugo Black was the last to have been in the House (he was also one of the few justices one could sometimes call. If it was a first amendment case, related to free speech, the gov't lost his vote) He died in 1971.
There have been 108 people appointed to the court (two of them resigned as justices, and were later appointed chief justice). 40 of them were not judges before they were appointed to the court.
In the past 30 years this has changed. The path to the court has narrowed. Go to a Name Law School. Clerk for a Justice, teach at a Name Law School. Get appointed to the Federal Bench, make friends; hope.
I don't think this has been for the best. The court doesn't reflect the makeup of the nation.
Where are the present justices from? The East Coast (seven of nine). Where did they go to School? Harvard (six of nine). What did they do before they were appointed to the court? Sat on Appeals Courts (nine of nine). About half the population is female, one of the justices is. Something like 20 percent of the population is hispanic, none of the justices are.
This is a nation of immigrants, I don't think we have any justices who are closer than grandparents to an immigrant forebear.
These are all things to ponder. The law is not some mystical thing which happens in classrooms and courts, it's the nitty-gritty of streetlife (right now the court is looking at two cases about life sentences for minors; someone may manage to bring a 14th amendment claim to the differential treatment of crack vs. powder cocaine). It's what determines who can marry whom (someone might manage to revisit the ruling which outlaws polygamy... the underlying reasoning [that the disparity of men and women made it socially destabilising to have one man taking more than one woman] isn't what it was).
It shapes what sorts of contracts we get, the nature of our stock markets, and the way we do business with each other. The law defines torture.
We live in a nation, "planted thick with laws," and ought to be glad of it. We also ought to have arbiters of those laws who appreciate just what the decisions they make about them does to the people who have to live inside them.
What I do know, is I'd really rather not have one of the usual suspects get the nod. We have a court made up of Ivory Tower Academics. This is bad. The Court is asked to address all sorts of things, which have both legal aspects, and practical aspects in the real world. It behooves us to have justices who have spent some time in the real world.
Used to be that was the case. O'Connor had been a politician. Frankfurter had been an Ass't Secretary of war, and a prosecutor, before he became a professor at Harvard. Earl Warren was Governor of California, William Douglas was Chairman of the S.E.C. and Lewis Powell President of the U.S. Bar Association.
Powell was appointed to the bench in 1972. He was the last justice to have served in private practice. Hugo Black was the last to have been in the House (he was also one of the few justices one could sometimes call. If it was a first amendment case, related to free speech, the gov't lost his vote) He died in 1971.
There have been 108 people appointed to the court (two of them resigned as justices, and were later appointed chief justice). 40 of them were not judges before they were appointed to the court.
In the past 30 years this has changed. The path to the court has narrowed. Go to a Name Law School. Clerk for a Justice, teach at a Name Law School. Get appointed to the Federal Bench, make friends; hope.
I don't think this has been for the best. The court doesn't reflect the makeup of the nation.
Where are the present justices from? The East Coast (seven of nine). Where did they go to School? Harvard (six of nine). What did they do before they were appointed to the court? Sat on Appeals Courts (nine of nine). About half the population is female, one of the justices is. Something like 20 percent of the population is hispanic, none of the justices are.
This is a nation of immigrants, I don't think we have any justices who are closer than grandparents to an immigrant forebear.
These are all things to ponder. The law is not some mystical thing which happens in classrooms and courts, it's the nitty-gritty of streetlife (right now the court is looking at two cases about life sentences for minors; someone may manage to bring a 14th amendment claim to the differential treatment of crack vs. powder cocaine). It's what determines who can marry whom (someone might manage to revisit the ruling which outlaws polygamy... the underlying reasoning [that the disparity of men and women made it socially destabilising to have one man taking more than one woman] isn't what it was).
It shapes what sorts of contracts we get, the nature of our stock markets, and the way we do business with each other. The law defines torture.
We live in a nation, "planted thick with laws," and ought to be glad of it. We also ought to have arbiters of those laws who appreciate just what the decisions they make about them does to the people who have to live inside them.
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no subject
Date: 2009-05-06 05:18 pm (UTC)What I do think the justices of the court need more experience with the law at a nuts and bolts level. The classroom, where they learn it, the lectern; where they teach it, and the appellate bench; where they implement it, are all places where theory rules the day.
Practice; be it small or large, litigation or criminal, private or public, is a world apart.
Theory is a lovely place, everything works in theory. But theory is a strange thing, let it out into to the wild (as with the idea that corporations are people Santa Clara County v. Southern Pacific
Railroad Company [118 U.S. 394 (1886)]) and all sorts of strange things happen.
I don't think they will stop, just because the justices have a broader experience of the law, but I think they will be different.
I am sure that having all the justices, with the same experience of the law, will lead to more of the same.