The Most Isolated Branch

At least SCOTX Justice Don Willett twitted, even if it was more about being cute and witty than substantive. He was out there, seeing, if not quite addressing, the insanity that spews through social media. But what of the Notorious RBG, who almost fell from the pantheon of social justice icons when she didn’t know who Colin Kaepernick was?

Glenn Reynolds distinguishes the view of ‘Merica of a co-equal branch of government consisting of nine people, one of whom wears a doily around her neck, from the others who have to occasionally tolerate the groundlings.

One of the best formulations of this division comes from photographer Chris Arnade, who has spent years documenting the lives of America’s forgotten classes. In his characterization, America is split between the “Front Row Kids” — who did well in school; moved to managerial, financial or political jobs; and see themselves as the natural rulers of their fellow citizens — and the “Back Row Kids,” who placed less emphasis on school; and who resent the pretensions and bossiness of the Front Row Kids.

Supreme Court justices, by definition, possess the characteristics of the elites, and it started with their being front row kids. You don’t end up at Harvard Law School by staring out the window praying the teacher won’t call on you. You’re the kid with the hand raised every time, who wants to sit in the front row to be closer to god than thee.

Meanwhile, the Supreme Court has become more and more elite. Increasingly, judges aren’t just law school graduates, they’re graduates of the most elite law schools. And that goes double for the Supreme Court, where everyone is a graduate of Harvard or Yale except for Ruth Bader Ginsburg, who got her degree from that scrappy Ivy League upstart Columbia.

For those unaware, Yale students speak really slowly to Columbia students because they’re taught to be kind. And for those who can’t understand why, today, anybody would read Dahlia Lithwick, she had some good ideas before the tragedy of 2016.

The current justices are intellectually qualified in ways we have never seen. Compared with the political operators, philanderers and alcoholics of bygone eras, they are almost completely devoid of bad habits or scandalous secrets. This is, of course, not a bad thing in itself. But the court has become worryingly cloistered. … There is not a single justice ‘from the heartland,’ as Clarence Thomas has complained. There are no war veterans (like John Paul Stevens), former Cabinet officials (like Robert Jackson) or capital defense attorneys. The Supreme Court that decided Brown v. Board of Education had five members who had served in elected office. The Roberts court has none. What we have instead are nine perfect judicial thoroughbreds who have spent their entire adulthoods on the same lofty, narrow trajectory.

You know who else isn’t represented in this gang of front-rowers? Trench lawyers. The folks who have experience actually doing what these front row kids only read about, hear about, think about from the great height of their bench. Sure, Sonia from the hood was in the trenches once, but that was as a prosecutor. Not exactly the most empathetic role in the well. And she was still a fancy-pants, Princeton undergrad, Yale law. Do they even have air to breathe that high up?

There’s nothing wrong with thoroughbreds as such, and if the court decided only narrow technical issues of law none of this would matter. But some of the most important social issues of the day come before the court, and given its members’ insularity, the problem is not just that Back Row America’s values won’t be considered — it’s that the court might not even realize it’s ignoring them.

Would anybody really want a bunch of dullards on the Supreme Court? It isn’t working out well elsewhere, and law kind of requires a certain amount of knowledge to appreciate how it works. But Glenn’s point, that with the accumulation of that knowledge comes a certain distance from the values of the little people, presents a problem when justices aren’t just asked to decide hypertechnical issues of law, but to infuse their decisions with social values.

The justices make choices. Sometimes based on erroneous facts, and sometimes to protect institutional concerns that many of us don’t share. If this seems like a problem now, as the Supreme Court justices just don’t seem to get what Americans want as reflected in their voting and in how they live their lives, chances are it’s going to get a lot worse as the little darlings coming of age in academia today are infused with ideas about the relative virtues of freedom and equality that never make it to farmers or factory workers.

Glenn offers “a thought” on what can be done about this.

To counteract this, we might want to bring a bit more diversity to the court. I’m not recommending that we eliminate the informal requirement that judges have law degrees (though non-lawyer judges were common in colonial times, and some countries still use them). But maybe we should look outside the Ivy League and the federal appellate courts. A Supreme Court justice who served on a state court — especially one who had to run for election — would probably have a much broader view of America than a thoroughbred who went from the Ivy League to an appellate clerkship to a fancy law firm.

Run for election? State court? This sounds remarkably like, oh, Justice Don Willett, who has been nominated for the Fifth Circuit Court of Appeals. Regardless of whether you think Justice Willett is the ginchiest judge on the twitters or not, he’s still breathing rarified air. The trenches are full of lawyers who went to third-tier toilets, but turned out to be pretty smart anyway and have their finger on the pulse of regular people, if for no other reason than to make sure they’re still alive.

If you want real judges on the Supreme Court, who grasp the real-life implications of their rulings, the tests, the doctrines, that are handed down for the sake of the groundlings, why not go crazy and put a real lawyer or two on the big bench? What’s the worst that can happen, the other thoroughbred justices have to talk slower and use smaller words? They’ll live.

27 thoughts on “The Most Isolated Branch

  1. CLS

    I would completely endorse the idea of Justice Greenfield, as long as one of your written opinions contained the phrase “Sit down. The Court has something to tell you, and it’s going to make you sad.”

        1. PseudonymousKid

          No way. You think you could convince the others who won’t talk to you without a handkerchief to cover their noses to agree with you? Or is it that they all bow to your superiority?

        2. Charles

          Just in time for Anthony Kennedy’s retirement, I see. BTW, I wouldn’t call Denver “the heartland,” but with Gorsuch’s appointment, Clarence Thomas’s objection isn’t quite as a valid as it was in 2016.

            1. Jim Tyre

              Would you at least consider ruminating?

              Kirk C. FISHER, Plaintiff-Appellant,
              Louis KEALOHA, as an individual and in his official capacity as Honolulu Chief of Police; City and County of Honolulu, Defendants-Appellees.

              No. 14-16514.
              United States Court of Appeals, Ninth Circuit.

              KOZINSKI, Circuit Judge, ruminating:

  2. wilbur

    I learned to sit in the front row because it was harder to fall asleep, especially after lunch.

    I learned to raise my hand early and often in each semester, because then the professor wouldn’t pick on me the rest of the term.

    Does that make me Supreme Court material?

  3. Jim Tyre

    You don’t end up at Harvard Law School by staring out the window praying the teacher won’t call on you.

    Hmm, where have I seen that before? You were doomed at an early age, you never had a chance.

  4. Hunting Guy

    Would it be too much to hope for someone that knows mining or water law to be nominated?

    Yeah, I thought so.

  5. PseudonymousKid

    Dear Papa,

    So you end up with a bunch of old people educated at Ivy League schools who have more in common with each other than with the median American and whose interests are tied to that of their fellow elites on the Court and in government and in powerful positions in the private sector. Congratulations, America, we’ve constructed something like Plato’s Republic without the groundlings getting upset or even knowing and without Plato’s virtues. Trump is now our “philosopher-king.” Thank god for marketing and twitter.

    Sophistication and education are not required for citizenship. I would love at least one pleb on the Court. Where’s an Andrew Jackson when you need him? We used to be an energetic and boisterous bunch. Where’d that go? The snotty elites want everything to be so serious.

    The “formulation” by a photographer on class divisions might possibly kill me. My eye at least better stop twitching before I have look like a lawyer again.


    1. SHG Post author

      Can we have sufficiently smart plebs? Clueless dolts aren’t necessarily better than the “snotty elites.” That much should be clear from current circumstances.

      1. PseudonymousKid

        In our current world, yes, there can be sufficiently smart plebs. Once they become sufficiently smart, however, they have this nasty habit of transforming into snotty elites over time. Such is life. It’s still useful to break up the aristocracy.

        1. SHG Post author

          You need to work on your “proof of facts.” Saying so does not make it so. You didn’t even start with “actually,” and end with “period,” which would have made it official.

          1. PseudonymousKid

            Well, I have you backed to asking for sources. I accept the challenge. The proof is in the pudding. Are you ready for the dirge?

  6. SPM

    The implicit assumption is that appellate judges with more “real world” experience would benefit defendants. However, today’s 7th Circuit opinion in US v Hakeem El-Bey (15-3180) may be a case that flips that assumption. If all of these judges did have trial experience, (Williams did serve as a district court judge, and Manion was elected to the state legislator) would they have simply concluded that the defendant invited most of the errors, now he has to live with them?

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