April 18, 2015

"One virtue of appointing federal appellate judges to the Court is that these highly judicialized folk are already masters at applying Supreme Court doctrine."

"After all, this is what circuit-court judges do every day: they study and apply what the Supreme Court has said about one legal issue or another. One problem, however, is that Supreme Court precedent can be dead wrong. Sometimes, in fact, it is baloney. And lower-court judges, who daily slice and eat this doctrinal baloney, may be ill-equipped to see it for what it is. Specifically, they may be inclined to think that judges are more right than they really are, and other branches of government, more wrong. A lower court’s job is to follow the Supreme Court’s precedents, whether right or wrong. But the Supreme Court’s job, in certain situations, is to correct its past mistakes—to overrule or depart from erroneous precedents. (Brown famously and gloriously abandoned Plessy v. Ferguson’s malodorous 'separate but equal' doctrine.) Someone who has not spent his or her entire life reading Supreme Court cases — who has instead spent time thinking directly about the Constitution and also spent time in a nonjudicial branch of government with its own distinct constitutional perspectives and traditions — may be particularly good at knowing judicial baloney when he or she sees it."

Writes lawprof Akhil Reed Amar in "Clones on the Court/A Supreme Court that once included former senators and governors is populated today by judges with identical résumés. Here's why that's a mistake."

30 comments:

Greg Hlatky said...

"'A lifetime of study of the Supreme Court has left me unconvinced that lawyers are better qualified to staff such a tribunal than would be philosophers, historians or litterateurs.'"

- Walter F. Murphy, The Vicar of Christ

rhhardin said...

Someone who has not spent his or her entire life reading Supreme Court cases -- may be particularly good at knowing judicial baloney when he or she sees it.

"His or her" is the Plessy v. Ferguson of langauge correctness. Who spots that?

Gahrie said...

I believe the Supreme Court should be made up of three former judges, three lawyers who had never previously been judges and three laymen who have never been lawyers.

There is nothing in the Constitution that says US Supreme Court justices have to be former judges.

mccullough said...

Most of what the Court does is interpret arcane federal statutes. As for the high profile constitutional cases, the background doesn't really matter much. The constitution rarely adressesthe specific issue so it's mostly policy preferences by everyone

khematite@aol.com said...

I think it's been reported that FDR, at the height of his pique against the Supreme Court, briefly considered nominating non-lawyers to that court.

One was Senator Robert LaFollette, Jr., the son of the more famous Senator LaFollette. The other was Edward Corwin, professor of constitutional law at Princeton.

Sebastian said...

Background doesn't matter. Judgment does.

Non-appellate appointees can suck too.

Since the Court mostly plays politics anyway, maybe we should just apply a variation of Buckley's Boston phone book rule.

Mark said...

Sometimes, in fact, it is baloney

Sometimes? The Court (and the judiciary as a whole, as well as the legal profession) have become a virtual delicatessen ever since they abandoned the idea that (a) the foundation of law is objective truth that is discovered by right reason in favor of (b) the idea that law is whatever they say it is, that law is nothing more than what those in power say it is and that they are free to choose their own truth according to their own predilections.

And the fact that most "justices" come from a handful of law schools that teach the latter does not help either, regardless of where they work after law school.

jimbino said...

There is no diversity on the Supreme Court. A justice has to be a humanities major, a Roman Catholic or Jew, and without advanced education in STEM or economics.

The standards for the Patent Bar are higher.

Hagar said...

So, why is the Federal statutes so arcane?
Instapundit is arguing that as things now are, ignorance of the law should be an acceptable defense because there are way to many "laws" - many of them contradictory to other statutes or make no obvious sense - and no one can be expected to know the ins and outs of the issues except after getting a court decision on his specific problem.

David Begley said...

Think about this: President Rubio appoints Ted Cruz and Jeff Sessions to the Supreme Court.

Checkmate.

robother said...

Of course, sometimes they just reject one brand of baloney for a different brand. Warren could've simply adopted Harlan's better reading of the Constitution In his dissent in Plessy. Instead, he chose to ground Brown in the pure sociological BS of integration as required for the mental and intellectual development of black children.
Or consider the pure pseudo-scientific blather of Blackmun's Roe v Wade opinion that couldn't withstand even 10 years of real world developments before O'Connor had to rewrite the opinion on marginally more sustainable legal grounds.

jimbino said...

Sebastian:

Background doesn't matter. Judgment does.

A litigant deserves a jury of his peers and impartial, knowledgeable judges.

For that reason, an atheist or protestant scientist will have no reason to expect fair treatment by SCOTUS, especially if the case involves religion or global warming.

Sebastian said...

"Of course, sometimes they just reject one brand of baloney for a different brand. Warren . . . chose to ground Brown in the pure sociological BS of integration as required for the mental and intellectual development of black children.
Or consider the pure pseudo-scientific blather of Blackmun's Roe v Wade opinion that couldn't withstand even 10 years of real world developments before O'Connor had to rewrite the opinion on marginally more sustainable legal grounds."

Right. Puts the con in con law. And you didn't even include any of W. Brennan's excretions.

Anonymous said...

These highly judicialized folk are also masters at politics, they know which party to butter up for the next promotion.

Most our laws' constitutionality is decided by one Supreme. In 5-4 decisions, 4/9 Justices don't know or don't care about the Constitution. How else could they be so "wrong" and "political"?

traditionalguy said...

It's Cult Day at Althouse. Fun for all.

jimbino said...

Sebastian:

Brown in the pure sociological BS of integration

Brown and almost all similar cases of the era spoke not of "integration" but of "de-segregation."

Bruce Hayden said...

The standards for the Patent Bar are higher.

Which is why so much of their patent jurisprudence is so ridiculous, most notably their Alice decision last summer, which put into question all software and business method patents, by some measurements half of what the USPTO is issuing. Back in the 1970s, with justices born in the 19th century, they reasoned that software was like mathematical equations, which are abstract, and thus not patentable. Since then, software has become ubiquitous in our lives, and a significant part of our GDP, yet the Supreme Court is still analagizing it to laws of nature like E=MC^2. They just destroyed many billions in worth with the stroke of a pen, by failing to have had a single programming class among the nine of them.

Sebastian said...

@jimbino: "Brown and almost all similar cases of the era spoke not of "integration" but of "de-segregation.""

Take it up with robother.

But everyone knows the pseudo-scociological BS in Brown.

There's a reason Amar delicately says Brown "abandoned" Plessy.

David said...

Because predictability and consistency of outcome is so yesterday. Keep 'em guessing jurisprudence is much more fun.

khesanh0802 said...

I was with the author until he praised Roberts' ACA decision, threatened Roberts over Burwell, then told me that the Gay marriage issue had equivalency with slavery and its aftermath.

I also notice that the article is recommendation free. Typical of many lawyers to outline a problem then leave it to someone else to determine a practical, implementable solution.

Mark said...

Back in the 1970s, with justices born in the 19th century, they reasoned that software was like mathematical equations, which are abstract, and thus not patentable

If only there were more restraint in IP these days. If they had ruled software patentable, such that it would be locked up in some monopoly, we probably still be marveling at the ability of the pocket calculator.

There is a point when patent/copyright becomes so protective/restrictive that it strangles technological progress.

That doesn't mean, of course, that the Court still isn't an abomination.

jimbino said...

Bruce Hayden:

The standards for the Patent Bar are higher.

The Patent Bar admits attorneys to practice and does not vet justices.

If you are a Patent Attorney in argument before the Supreme Court, you will be smarter and better educated, for sure.

Left Bank of the Charles said...

Kagan was never a judge, and Thomas only briefly. But let's assume The Atlantic has a specific candidate in mind, who would it be? My guess is Deval Patrick, the former Governor of Massachusetts.

Anonymous said...

I couldn't agree with this more.

If our Supreme Court requires legal experts with extreme education, we are doing it wrong.

Intelligent men and women who are down to Earth and have common sense should be able to do the job.

rcocean said...

Lets see if he whistles the same tune when a Republican nominates a Senator or Governor in 2017.

BTW, Clinton wanted Cuomo on the court and Cuomo refused.

rcocean said...

And the last thing we need is more politically driven decisions on the SCOTUS. Most politicians are terrible Justices because they see it as another way to impose their political beliefs on the country. Black, Warren, and O'Connor were terrible justices IMO.

JCCamp said...

Citing Warren or Douglas as examples of those better qualified for the USSC even thought they possessed no prior experience as members of the judiciary is somewhat self-defeating, I would think. They would better serve as examples of the personalities lacking restraint or judgement, and unsuited for making decisions binding on the other branches of government.

Kirk Parker said...

Bruce,

I totally disagree. As a software practitioner myself, I consider that software patents are a terrible monstrosity, and that what was destroyed in Alice was worthless, artificial value that existed only due to the artificial monopolies previously wrongly granted.

Eric said...

Brown famously and gloriously abandoned Plessy v. Ferguson’s malodorous 'separate but equal' doctrine.

"Malodorous"? Really?

Saint Croix said...

I am a huge fan of Amar and his work. He's a classic liberal, in the Hugo Black mold. He is the sort of liberal we need desperately on the Supreme Court. Somebody who takes the words of the Constitution seriously. Here is the article he wrote on the death of his teacher, Robert Bork.