Being a justice doesn’t make you a policy expert

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Lawyers have long played an outsized role in American policymaking. Almost two-thirds of the delegates at the Constitutional Convention in 1787 were trained in the law, more than half of U.S. presidents have been lawyers, and even today half of current U.S. Senators were practicing attorneys. 

Less visibly but still important, lawyers overpopulate congressional committee staff positions, state-level legislation-drafting departments, and executive-branch general-counsel offices, which (policymakers quickly learn) provide policy as well as legal advice. Even in the public square, once attorneys speak up and invoke some legal principle, non-lawyers generally concede their own lack of a J.D. and promptly hush up.

All of these examples inflate the role of lawyers in policymaking. But at least such roles still exist inside the process of democratic governing. That is, if lawyers are to hold sway, they still need to get elected, get appointed by elected officials, win votes in legislative chambers, and so on. But the same cannot be said of the policy influence of lawyers operating in the judicial branch – most prominently the Supreme Court. To put a fine point on it, justices, judges, and their clerks – as well as the law professors who influence them – are increasingly driving policy in the United States even though they know very little about policymaking. That’s a problem.

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There are many possible explanations for the large and growing role of courts in policy – among them, that Congress currently suffers from self-inflicted weakness, presumptuous judges have inserted themselves in too many areas of governing, and brash action by executive-branch actors precipitate emergency lawsuits. I leave it to others to sort out the “why.” The bigger question for those who care about governing is whether members of the judiciary are qualified to play a key role in policymaking. They are not. 

As with any profession or craft, to be proficient in the world of policy requires knowledge and experience. You need to understand formal systems, including budget offices, floor and committee processes, appropriations rules, authorization timelines, internal audits, rulemaking, guidance letters, and so on. You also need to understand informal, customary matters like the role of a legislative services office, the discretion exercised by cabinet secretaries, and the deference provided to municipalities.

You also must understand the history of a policy domain. No law or rule materializes out of nowhere. It is part of a web of choices and compromises adapted over time. Each appropriations line item, each program amendment, and each statutory reauthorization is a response to contemporary conditions as well as a continuation of past practice. What appears to the novice as an arbitrary, capricious choice by an administrator is probably a decision shaped by decades of lessons learned. 

Lastly, policy creation and execution take place in the rough and tumble of public life. Policy leaders in the political branches knock on doors and engage in debates during campaign season, they are pursued by and respond to journalists, and they receive and respond to messages from constituents and advocates. As a result, they are attuned to the public’s mind and appreciate what can be accomplished and at what cost. And they can be held accountable.

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Justices, judges, and clerks, as well as the legal experts who influence them, have very little of the above. First, law school is not preparation for policymaking or governance. Courses on contracts, torts, civil procedure, property, and legal writing do not teach you how to govern. Nor do the professors of such courses typically have any experience in policymaking. 

There are, of course, classes that bump into a policy area, but they focus on its legal dimensions – for instance, housing law or health-care law. In an education law course, you will learn a great deal about the First Amendment in schools and the federal laws governing special education services. You will not have time to learn about essential policy matters like the 19th-century formation of common schools, the rationale behind land-grant colleges, or the consolidation of school districts. 

By contrast, a graduate degree from a public policy program typically requires courses on public-sector finance and management, government budgeting, quantitative methods, policy research, decision memos, the moral/ethical dimensions of policy, and courses on the history and context of specific policy areas (like education, transportation, or the environment). Whereas law students intern for judges or law firms, policy students intern for policy officials. The academic training for the law is not the academic training for policy.

After law school, future judicial-branch officials and influencers spend little to no time in the policy world. To the extent they have any experience in the elected branches it is almost exclusively in prosecutorial roles. They are going after bad guys, not developing welfare policies or administering economic-development programs. 

Let’s look at the Supreme Court. It has been well documented that recent justices have generally followed a similar, policy-lite professional track: law school, followed by clerkships, stints at the Department of Justice or the counsel’s office at the White House, private practice, teaching, and appellate judgeships. This was not always the case. As recently as the beginning of this century, the court used to have former state legislators(Justice Sandra Day O’Connor), members of Congress, governors, and cabinet secretaries. 

In other words, the court is reaching the apex of its policy engagement while at the nadir of its policy experience.

But it’s not just justices; it’s clerks and federal appeals court judges as well. For a project this year, I studied the backgrounds of all Supreme Court clerks since 1980. The number with policy experience prior to serving at the court was infinitesimal. They had prior clerkships, worked for private firms, taught at law schools, and worked for legal-advocacy groups, but they seldom worked on policy.

It was similar for federal appellate judges, including those purportedly on the shortlist for future Supreme Court openings. Though I was able to create a list of 10 right-of-center judges with some policy experience, it was remarkable how few there were. I planned to create a similar list for left-of-center judges, but there were even fewer with meaningful policy experience.

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One might nevertheless ask, “Isn’t it perfectly fine that the legal class has negligible governing experience?” That is, because judges aren’t “doing policy” but instead interpreting law, isn’t it acceptable that they lack knowledge about and extensive time in policy-making roles? 

The answer is no. Imagine, for example, that I was charged with rendering judgments on bridges. I had the authority to knock them down or require their overhaul after construction was complete based on my expert sense of aesthetics and the public’s quality of life. Now bear in mind: I know little to nothing about geology, environmental impact statements, labor costs, procurement rules, load-bearing capacity, trusses, or arches. You would be right to question how I could meaningfully assess the final products without a deep understanding of the rules, processes, and considerations faced by the builders.

Now imagine that a new nine-member federal commission was created with the power to overturn or modify any state or federal court action. This commission would be made up entirely of policy experts. They would ensure that all judicial decisions complied with the principles of democratic self-government. Imagine that none of these commissioners had any legal training or experience. In a heartbeat the legal community would object. As this example makes clear, the final product cannot be separated from the process that generated it.

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How does the court’s lack of policy knowledge and experience manifest itself? The most obvious is in its willingness to invalidate so many state and federal laws despite the legitimate authority, essential duties, and grueling processes of legislatures. Judicial review is obviously essential to a constitutional republic, but courts lacking governing experience are at risk of elevating their own sense of liberty and justice above the work of democratic processes. 

Courts lacking policy experience also issue rulings that reveal their unfamiliarity with the duties and capacities of governing bodies, thereby complicating if not undermining their work. In recent Second Amendment cases, the court has applied an evolving history-and-tradition approach whose contours are debated even among the conservative justices. The practical result requires legislatures to identify acceptable historical analogies for their modern regulations – a task the court itself struggles to define. It is hard to imagine this happening if the court had members who previously served in state legislatures. 

In the “angry cheerleader” case, in which the court considered whether a student’s profane comments on social media about her school were protected by the First Amendment, the court failed to adequately recognize the historical, publicly supported role of educators in forming the character of students through condign discipline. Had the court had members with any meaningful experience in state or local K-12 education office, it likely would not have considered a student’s obscenity-laced rants at educators and coaches to be protected speech. Recent cases have made a hash of college sports, upending amateur athletics and causing enormous problems for university administrators, coaches, supporters, and more. If the court had members with meaningful experience in higher-education policy, it would have understood the implications of (and perhaps hesitated before) unwinding decades of policy and practice. 

In the years ahead, as the court considers cases involving tariffs, immigration, AI, trans athletes, and religious charter schools its decisions would be far better informed if more of its members better appreciated the policies at stake and the officials and processes behind them. It is instructive that when Chief Justice William Howard Taft – a former president – was on the court, it wisely ruled in Myers v. United States that the president alone has the authority to remove executive-branch officials. Taft’s prior experience no doubt informed the court’s deliberations on a matter central to the operations of the executive branch. It is also instructive that only five years after Taft retired, the court issued Humphrey’s Executor v. United States, which limited the holding in Myers. That decision may be finally overturned this year. But its century of regrettable ripples might have been avoided had another Taft been on the court.

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Perhaps the only thing more remarkable than today’s yawning gap between policy engagement and policy experience is the legal community’s seeming obliviousness to it. I can’t find instances of law schools purposely hiring policy experts for their faculties. Legal conferences have few policy leaders on their agendas. Justices and judges don’t seem eager to hire clerks with policy experience or solicit guidance on matters of policy.

The current course of action must not continue. We can’t have a legal community that is so under-experienced in policy play such a major role in policy.

There are two possible solutions. The first assumes that courts will continue to involve themselves in policy. In this case, presidents should prioritize nominating judges and justices with more policy experience, and the Senate needs to take serious consideration of judicial candidates’ policy acumen. Law schools need to hire more policy faculty and teach more policy courses, and/or law students hoping to be judges should be expected to earn graduate degrees in policy. Judges and justices should hire clerks with policy experience and/or create fellowships parallel to clerkships for policy experts. Courts should be transparent about their policy-related considerations when cases are accepted, reflected in the question(s) they choose to consider and through explicit solicitations for policy advice from experts. Policy experts should be permitted to submit “friend of the court” briefs without needing a lawyer to represent them.

If all of this sounds too burdensome, there is another way: Courts could simply stop involving themselves in policy matters so much. Justices and judges would recognize that most policy issues coming before them should be left to the legislative and executive branches. Courts would declare more matters to be political questions and/or nonjusticiable. Unless a statutory or constitutional provision bears directly on an issue, the court would defer to the democratically accountable public officials involved. This would mean getting out of many of the nation’s most politically polarizing issues. It would signal justices and judges’ understanding that “judicial restraint” isn’t just a philosophical approach; it’s also the recognition that courts are not qualified to do the work of legislators and executive-branch administrators.

Those experienced in governing would be glad for the judiciary to choose either of these two paths because they lead to the exact same place: courts stepping back from most policy matters. A judiciary that learned and experienced all it should about policy history, process, principles, conflicts, trade-offs, negotiation, compromise, and accountability would appreciate why courts are poorly suited for that work. They’d also be less likely to overturn laws and executive-branch policies, and their decisions would be more modest as they came to appreciate how bold judicial pronouncements can scramble the work of the constitutionally empowered officials tasked with, and held accountable for, advancing the public good.