Academic highlight: Howard on the evolving Supreme Court
on Jul 8, 2015 at 3:05 pm
In 1962, University of Virginia Law School professor A.E. Dick Howard clerked for Justice Hugo Black, and he has been a close observer of the Court ever since. In a recent article, The Changing Face of the Supreme Court, Professor Howard describes how the Supreme Court has evolved over the last fifty-three years, providing the long view on an institution that is both timeless and ever changing.
In 1962, the Supreme Court was made up of nine white men, as it always had been. Today, of course, the Court has three female members and is ethnically and racially diverse. But Howard reminds us that it is a “mistake to assume that members of racial and ethnic minorities have a monolithic approach to issues.” Despite its lack of diversity, the Court was unanimous in Brown v. Board of Education, and decided Roe v. Wade by a vote of seven to two. Howard points out that advocates today cannot assume that a female Justice will strike down all restrictions on abortion (Justice O’Connor didn’t), or that an African-American Justice will support affirmative action (Justice Thomas doesn’t).
Despite the increased diversity, Howard observes that the current Justices’ backgrounds are remarkably homogeneous compared to their counterparts on the Warren Court. As many have noted, they were all educated at either Harvard or Yale Law Schools, they are all either Catholic or Jewish, and eight of the nine served on federal courts of appeals before ascending to the Supreme Court — a marked contrast to the varied life experiences of the Warren Court Justices.
Most striking is the Court’s lack of geographic diversity. The seventeen Justices who served on the Warren Court hailed from thirteen different states from across the United States, and regional diversity was once a factor in the nomination process. (Justice O’Connor reportedly thought that she would never be nominated because Justice Rehnquist was also from Arizona.) Yet geographic diversity appears to play almost no role in the nomination process today, leaving us with a Court on which four Justices were raised in New York City, and eight spent the majority of their adult professional lives on the East Coast. (Although Justice Kennedy lived and worked in California, Justice Scalia informs us that “California does not count.”)
The advocates have changed over the years as well. Although a lot has been written about the rise of an expert Supreme Court bar, Howard provides some striking statistics that drive home the point. In 2000, about twenty-five percent of the Supreme Court’s docket consisted of cases in which experienced counsel were the petitioners; that number increased to thirty-nine percent in 2006, and is now over fifty percent today. Howard speculates that the Court is deferring to the experts to assist it in creating its docket, trusting that for reputational reasons alone such lawyers will not petition the Court to take a case that is not worth its time and effort.
Even as the Supreme Court bar has been expanding, the Supreme Court press corps has shrunk rapidly as newspapers have reduced their staffs. But Howard notes that blogs such as SCOTUSblog and the Volokh Conspiracy have helped to fill the vacuum. Howard writes that “SCOTUSblog has revolutionized the ability of news outlets and the public to follow the workings of the Court.” (And I would add that it has been very helpful to law professors who want to be able to share the latest developments with their students.) Blogs such as the Volokh Conspiracy have also proven influential; it is not unusual to find arguments made on that blog appearing in briefs to the Court, or even in the opinions themselves.
Lastly, Howard notes that the Court’s popularity has recently declined. A 2014 Gallup poll showed that confidence in the Court has fallen to thirty percent, which Howard states is the lowest since Gallup started keeping track in 1973. (But that number is perhaps less surprising when compared to the vote of twenty-nine percent for president, and only seven percent for Congress).
All of the changes described by Professor Howard are interesting and important. And yet after reading his article in full one is most struck by how the institution has remained the same. The Court has evolved with the times, and yet if Chief Justice Warren (or even Chief Justice Marshall) were to observe the Court at work today, he would find that the daily tasks of reading briefs, hearing argument, and writing opinions has remained essentially unchanged.