Commentary: A Changed Court?

The following commentary is from Andrew Pincus, a partner in Mayer, Brown, Rowe & Maw LLP, who filed an amicus brief for the Leadership Conference on Civil Rights and the Leadership Conference on Civil Rights Education Fund. The views expressed are his own.

Yesterday’s decision in the schools cases, and a number of the other decisions this Term are disappointments on many levels.

The last paragraph of Justice Stevens’ dissent struck a chord with me. Referring to the summary affirmance of a Massachusetts state court decision upholding a law requiring plans like those struck down yesterday, Justice Stevens wrote:

“The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

Today’s Court is very different in significant ways. That difference, I think, is one of the keys to several of this Term’s decisions, including the decision in Louisville and Seattle.

Many of our greatest Justices came to the Court after substantial involvement in the country’s public life and, frequently, after serving in elective office. Chief Justice Marshall, of course, served in Virginia’s House of Delegates, in Congress, and as Secretary of State. Hugo Black and Earl Warren came to the Court from elected office. Justice O’Connor brought to the Court her experience in the Arizona legislature. Although Justice Powell did not hold elective office, he guided his community through one of the most contentious issues our country has ever faced during his service on the Richmond School Board.

The current Court is striking for the absence of even a single Justice with such experience. A friend looked recently at the composition of the Court in 1907, 1957, and 2007. In 1907 and in 1957, four of the then-serving Justices had been elected to public office and three had prior experience as judges. Today, in stark contrast, all nine of the Court’s current Members served as judges prior to joining the Court; none had held elected office.

There undoubtedly are many reasons for this phenomenon – a post-Bork confirmation process that favors nominees with no “paper trail”; interest groups in both parties that demand nominees likely to be “dependable” votes in certain kinds of cases; and the widespread impression – fostered by the ascendant legal ideology – that judging is a technical exercise, for which the essential credential is expertise in the legal academy, as a judge, or the equivalent.

The consequence, however, is that the range of experiences brought to the Justices’ Conference is significantly limited. Judging requires the exercise of judgment, and everyone’s judgment inevitably is influenced by his or her life experiences. The Court has benefited over virtually its entire history from a diversity of experience. To cite just one example, Justices O’Connor, White, and Kennedy all have written about the importance to the Court of Justice Marshall’s ability to bring to bear on pending cases his perspective as a personal participant in the civil rights struggle.

In his recent separate opinion in Tellabs, Justice Scalia recognized that it is unremarkable that different Justices, and different judges on lower courts, would come to different conclusions regarding the natural reading of a statutory provision. These varying views flow from each jurist’s particular reaction to the language and structure of the statute in question, a reaction that inevitably is the product of his or her own experience. That is even more true with respect to the broad clauses of the Constitution, whose interpretation is informed by a Justice’s view of the proper approach to constitutional interpretation, a provision’s language, underlying history, and the Court’s precedents.

Is it possible that the current Court’s rather marked willingness to find constitutional limits on the authority of the Legislative Branch – striking down federal statutes at an unprecedented rate (and limiting State authority as well) – results in part from the fact that no Justice has actual legislative experience? Is Monday’s adoption of a more academic approach to assessing the constitutionality of campaign finance regulation attributable to the absence from the Court of anyone who actually has significant campaign experience? Is it possible that the absence from the Court of any Justice with substantial experience as a government official responsible for resolving contentious public policy issues produces a willingness to announce broad principles disconnected from the realities of government decisionmaking?

There is one significant data point that provides some support for my hypothesis. Justice Powell’s experience on a school board clearly was important in his approach to desegregation cases. And his view of a school board’s authority to use voluntary race-based measures to promote diversity was squarely at odds with that of the plurality’s.

Justice Powell wrote in his opinion in Keyes that “[s]chool boards would, of course, be free to develop and initiate further plans to promote school desegregation. In a pluralistic society such as ours, it is essential that no racial minority feel demeaned or discriminated against and that students of all races learn to play, work, and cooperate with one another in their common pursuits and endeavors. Nothing in this opinion is meant to discourage school boards from exceeding minimal constitutional standards in promoting the values of an integrated school experience.” And later in his dissent in Seattle School. Dist. No. 1, he said that “[a]s a former school board member for many years” he would “[a]s a policy matter” leave in place a school board’s decision to experiment with a voluntary student busing program.

My point is not that Justices should be selected on a quota system – so many former legislators, so many former executive branch officials, etc. And it is not to criticize any current Justice. Rather, it is to direct attention to the fact that the current selection process has produced unusual uniformity – experience as judges, in legal academia, in legal policy (for example, the Solicitor General’s office and the Office of Legal Counsel).

If judging were a technical exercise – after inputting the relevant data only one answer could come out – then this would not matter. But judging is not a technical exercise. Judges’ experiences plainly influence their decisions. We therefore should be very worried that the selection process’s undue emphasis on judicial and academic experience is skewing the Court’s decisionmaking in manner unprecedented in the Court’s history – and creating consequences that we will be living with for decades to come.