Chief Justice John Roberts is Wrong
by Jonathan Singer, Mon Feb 16, 2009 at 12:49:20 PM EST
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.