The Supreme Court is not representative of America, nor is it representative of the American legal system. The judges might appear superficially diverse at first glance, but once one digs a little deeper, they almost appear to be clones of each other – at least experientially and educationally.
This is not a good thing, something which one very well-known federal judge made mention of this past week.
Judge Richard Posner is the most influential federal judge you have never heard of. The Chief Justice of the Seventh U.S. Circuit Court of Appeals in Chicago Judge Posner is the most cited judge in American legal history.
Judge Posner has also been an outspoken iconoclast his entire career, and one who is nearing retirement, which might explain why he felt fine unleashing this gem at a book signing for his new biography last week about the Supreme Court.
“I’m actually writing a book now called ’Strengths and Weaknesses of the American Legal System,’” Posner said. “It’s almost entirely about the federal judiciary. So I have about ten pages on the strengths and about 320 pages on the weaknesses.”
Shots fired, sir!
But with his next sentence, he addressed something I have often considered: “I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir. Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They’re okay, they’re not great.”
Pretty harsh words from a lower court judge to level against the Supreme Court, even if that lower judge is one of the most distinguished jurists in American history.
Posner explained that the two main reasons he had such a low opinion of the court is because nearly all of the justices lack trial court experience and because by and large justices do not write their own opinions and instead delegate them to law clerks. (Posner himself writes every one of his own opinions and has written over sixty books). Both of these are valid points, and I have a couple other ones to add as well.
If a judge is going to issue a major ruling on the U.S. Constitution that will affect 320 million people and the legal system of the most powerful nation on Earth, then they should probably write their own opinions and have clerks there for assistance, not for full-scale drafting.
Trial court judges are also not much represented on the court. Appellate law is a hyper-intellectual type of law that places a heavy weight on written briefs and less on the witnesses and non-expertise of the trial courts. Appellate lawyers are also increasingly necessary in our modern and heavily legalized world. However, it also has a reputation for insulating practitioners from the more confrontational – and common – experience of trial courts. It would be good for the Supreme Court and good for the United States to have a greater diversity of legal experience on the Court and a richer array of backgrounds for sitting justices to draw upon.
While there is a range of races and ages on the court, almost every justice studied law at either Harvard or Yale, clerked for a Supreme Court justice, worked at an elite law firm and then served as a federal appellate court judge before being nominated for the court.
None of these are bad things. Indeed, they are each marks of intellect, drive and high achievement.
However, if each member of the Court has roughly the same elite academic and experiential background, it is a disservice to the American people as a whole. If the next president – Republican or Democrat – is serious about increasing the diversity on the Supreme Court, they should consider looking past the glittering ranks of elite graduates and consider those from non-Ivy Schools or from outside the judiciary. Graduates of public law schools, judges who did not come up in appellate courts, and individuals who did not serve as federal clerks would go a long way toward ensuring that our Court is not an elites-only institution but is instead one that represents Americans of every background.