Judicial Experience and the Supreme Court of the United States

Chief Justice John Roberts recently stated his opinion that the fact that every currently sitting Justice has, for the first time in history, been a federal appeals judge was a good thing. I myself am not so sure this is a good thing. Looking back at history, scientific studies, even common sense makes this opinion suspect.

I am not sure how many people realize, but there has never been a requirement that a Supreme Court Justice be a judge, or even a lawyer. It’s really only in the last twenty years or so that this has become something of the standard. Historically many have not been judges. Some of the most influential justices were not judges. Chief Justices Marshall and Warren are two examples of this. They may be the two most influential Chief Justices to date with Marshall defining what would become the modern court. Warren is noted for the number of Civil Rights decisions handed down during his tenure. Both were in fact politicians and public servants but neither was ever a judge. This points out that you don’t need to be a judge to be a good justice.

There is a deeper perspective here though in why a SCOTUS full of only judges would be a bad thing. While the law, and an understanding of how the law works is important the Supreme Court requires more than just pure expertise in the letter and workings of the law. The SCOTUS, at least to me, is much more than simply the highest level of appeals court. Decisions made by this court can, and will, have far reaching impact well beyond the case they are hearing. Decisions have been made which have, quite literally, change the course of the nation. Examples of this include Dred Scott vs. Sandford, Marbury vs. Madison, Brown vs. The Board of Education, Rove vs. Wade . Those are just some examples of cases which have had powerful political ramifications. It’s this reason why you need a court with a mix of those who understand public policy as well as law.

The Court has to be able to not only understand the letter of the law, they must also understand the spirit of the law. They have to see the currents of public opinion, they have to recognize the importance of “protecting the minority from the tyranny of the majority”, and most importantly they have to make their decisions based on a larger picture not just the microcosm of the law.

All this means a court of Justices that were only judges can be bad. Scientific studies bear this out as well. A new study that looks at this effect on the court points out that it may not be a good thing. Also when you have a group that makes decisions becoming more and more the same groupthink can develop which is never a good thing.

Those that argue for more judges on the court do so mainly because they don’t want to see laws invalidated by the Court. This reasoning is flawed in that it dilutes one of the major functions of the court. The Court needs to be independent and strongly principled. Neither of these things predicates being a federal judge. While that is not to say a federal judge would be a poor choice, only federal judges would be. Diversity of background on the Court can only be a good thing.

These reasons say to me “all federal judges” for the court would be a bad thing. I hope that Obama, when the time comes, makes his nominations based on the idea that only judges on the court would be bad. I hope he looks to the bigger picture in his nominations.

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