The Court and the real world.

Stuart Taylor argues in the September Atlantic that lack of any real world legal experience has led the Supreme Court to make head-in-the-clouds decisions that make trying cases, doing business, and running the government terribly difficult for the rest of us. (The link is for subscribers, but for the next three days you can get to it here.)

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 Court fusses around producing ten opinions and 140 pages of inconclusive nattering about a couple of Ten Commandments displays. Meanwhile:

[A]ccording to Michael Greve, the head of the American Enterprise Institute's Federalism Project, this Court has "resolutely refused to tackle the inconsistencies and absurdities that, after decades of neglect, afflict nearly every area of commercial litigation." One reason, Greve argues, is that with the exception of Justice Breyer, "the Court has absolutely no idea what business litigation in America now looks like."

I'm not convinced the background of the Justice is what would make a difference. After all, as Greve notes, it's Breyer, not Souter, who brings practical common sense to the table. (Though, ironically, it's Breyer's vote that made the two 10 Commandments cases go in opposite directions.) I realize there's a push in some quarters to get President Bush to pick a person with political experience to replace Justice O'Connor, but I'm very wary about that. You're not just importing political experience into the Court, you're introducing one individual politician, with the particular set of political commitments that got him (or her) elected.