Chief Justice John Roberts is Wrong

Adam Liptak in The Times:

For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development may be a good thing.

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts's predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.

As a consequence, Chief Justice Roberts said, "the practice of constitutional law -- how constitutional law was made -- was more fluid and wide ranging than it is today, more in the realm of political science."

Since then, Chief Justice Roberts continued, "the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?"

That move, he said, has resulted in "a more legal perspective and less of a policy perspective."

Matt Cooper writing over at his new digs, TPM DC, disagrees with Chief Justice John Roberts, suggesting that the Supreme Court would be better served with membership including a wider background including those who have held elective office. I've written at some length on the topic in the past, and hope to write some more on it in the future (including perhaps my writing requirement for law school), and have come to the same conclusion as Cooper.

Liptak notes that this is the first time in United States history that the Supreme Court is entirely made up of former federal appellate judges. It is also only the second time in 220 years that the Court is without a justice with legislative experience (the other time being the period between Hugo Black's retirement in 1971 and Sandra Day O'Connor's selection in 1981). Indeed, as of 2005, when I first wrote on this subject, more than two in five members of the Supreme Court throughout history have had experience serving in a legislature, including more than one in five who had served in Congress.

This doesn't mean that the Supreme Court should function like a super-legislature, or that it was intended to function as such. But those who have previously served in public office, more than those who have remained in the ivory tower of academia or the highest of courts, have a better sense of the practical impact their decisions can have on citizens of this country. Perhaps more importantly, they, better than those who haven't spent some times in politics, understand how to expand a divided and divisive 5 to 4 majority -- which we seem to be seeing more and more of as the narrow conservative majority on the Court appears intent to press it's advantage to overturn decades of precedent -- into a more stable 6 to 3, or even 7 to 2 majority.

So as I've argued before, and Cooper writes today, I think it's time to go back to what has worked for the past couple hundred years rather than simply follow Roberts' lead and consider not just career jurists for the bench but also those with more varying backgrounds -- including those with experience in elective office.

Tags: john roberts, Supreme Court (all tags)

Comments

6 Comments

Re: Chief Justice John Roberts is disingenous

I'm shocked, shocked I say, that Roberts wants only federal appeals court judges to be appointed to the Supreme Court; after Shrub spent the last 8 years stacking and stuffing that bench with members of the Federalist Society, what else would you expect.

We've got to call Roberts on this blatantly cynical hyperpartisan ploy.

This guy is a shrewd, nefarious operator. Nothing he says can be taken at face value.  Every move he makes is design to reinforce a reactionary activism on the High Court.

Where are Tribe, Turley and Dershowitz to call him on this transparent non-sense?

by martinlomasney 2009-02-16 01:09PM | 0 recs
Re: Chief Justice John Roberts is Wrong

I have to disagree for the most part.

Cooper's assertion that a lifetime of service on the federal bench "yields the likes of Scalia" is flat-out wrong.  IMO, Scalia is the Justice who behaves most like a political creature.  His Lawrence and Boumediene dissents were very short on law and high on crazed rhetoric.

I also don't like the above idea that a politician can mold a 5-4 split into a 6-3 or a (be still my heart!) 7-2 split.  What's the practical impact?  The conservative majority's opinions are more "durable?"  David Broder is swept of his feet in a wave of judicial "bipartisanship?"  Anyway, I reject the premise that a generic politician is better at forging (an unnecessary) consensus than a generic judge.

A Justice coming from the federal circuit has a much better understanding of how the Supreme Court's decisions and frequent lack of clarity can wreak havoc or highly benefit American jurisprudence.  

Ironically, the politician-jurist is an anachronism for a political reason.  Can you imagine the absolute terror involved with getting any Clinton, Feingold, or Dean on the Court?  Long political records make the process infinitely more difficult.

Give me a young, strong liberal judge with a record not easy for the RW to distill into soundbites of attack.  The confirmation will be that much easier (and more likely) and the outcome- which is the VOTE of the Justice - will be the same.

by enr37 2009-02-16 01:23PM | 0 recs
Re: Chief Justice John Roberts is Wrong

"Give me a young, strong liberal judge with a record not easy for the RW to distill into soundbites of attack."

Those don't exist. Seriously they don't. Liberals don't think that way (hide your inclinations so you can get ahead).

by MNPundit 2009-02-17 12:01AM | 0 recs
Re: Chief Justice John Roberts is Wrong

there is a simple reason he wants those who have only been on the bench: control. With people like a Sandra Day OConnor, you aren't going to have that kind of control because the fact she was not able to get a job out of Stanford Law as an attorney shaped her. Whereas with someone who has moved lockstep down the path the  the S. Ct., their dances and moves (even if they are liberal) are will known. The fact that many of them conservatives also limits Obama's options.

by bruh3 2009-02-16 01:50PM | 0 recs
Re: Chief Justice John Roberts is Wrong

Kind of split here. On the one hand, John Roberts likes to dodge questions, on the other, the SCOTUS is by definition the mightiest legal minds in this country and I want them up to the challenge.

Scalia is a hypocrite and Thomas has wildly flawed examples but the point remains.

by MNPundit 2009-02-16 11:59PM | 0 recs
Agree 100%

Roberts is a product of the Federalist Society Farm System, so of course he spouts the mantra.

Not only does this limit the kind of judges we have, it also cuts out academics from consideration, which is another potential pool of highly qualified candidates.

This is a strict constructionist view, and hopefully Obama, who has friends in both politics and academia that more then qualify for the court (sheesh...Clarence Thomas????) and will realize this is just a tin-pot politician (Roberts) talking through his hat.

by WashStateBlue 2009-02-17 03:54AM | 0 recs

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