SCOTUS is too important - Glenn Reynolds
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Some snippets:
When your political system can be thrown into hysteria by something as predictable as the death of an octogenarian with advanced cancer, there’s something wrong with your political system. And when your judicial system can be redirected by such an event, there’s something wrong with your judicial system, too.
Supreme Court nominations and confirmations didn’t used to mean much — Louis Brandeis was the first nominee to actually appear before the Senate Judiciary Committee — because the Court, while important, wasn’t the be-all and end-all of so many deeply felt and highly divisive issues. Now it very much is.
The point isn’t whether the Court got the questions right. The point is that it decided these important issues and, having done so, took them off the table for democratic politics. When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, there’s no real democratic remedy.
Almost as bad, the Court is highly unrepresentative. That doesn’t matter when it’s deciding technical legal issues, but once it starts ruling on social issues of sweeping importance to all sorts of Americans, its lack of diversity becomes a problem. And not just the usual racial and gender diversity. Every current member of the Court is a graduate of Harvard or Yale Law Schools. (Justice Ginsburg offered a bit of diversity there, having spent her third year, and gotten her degree from, that scrappy Ivy League upstart, Columbia University. But she spent her first two years at Harvard). All of them were elite lawyers, academics, or appellate judges before arriving on the Court. They are all card-carrying credentialed members of America’s elite political class. Which, as I mentioned earlier, is in general pretty terrible.
Justices used to come from much more diverse backgrounds. Until well into the 20th Century, many Justices — Justice Robert Jackson was the last — didn’t have law degrees, having “read law” after the fashion of Abraham Lincoln, and for that matter pretty much every lawyer and judge until the 20th Century. Many had been farmers, military officers, small (and large) businessmen, even in one case an actuary. But now they are all, in Dahlia Lithwick’s words, “judicial thoroughbreds” with very similar backgrounds, backgrounds that make them very different from most Americans, or even from most lawyers.
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That is interesting. I was surprised when I first read that someone does not have to have a law degree to be on the Supreme Court.
Also interesting is that the supreme court number of judges varied quite a bit before ending on nine. A article I just read that has some of that history from National Geographic.
