Justice Roberts: I am the best qualified to do what I do.
For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development may be a good thing.
Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.
As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.
As a consequence, Chief Justice Roberts said, “the practice of constitutional law – how constitutional law was made – was more fluid and wide ranging than it is today, more in the realm of political science.”
I’m not sure I could disagree more strongly. As I’ve emphasized in recent weeks (here, here, and here), I think judging is first and foremost doing justice. A variety of viewpoints (including those of “former governors, legislators, cabinet members, law professors and practicing lawyers”) is far more likely to lead to justice as it is defined in the real world than the abstractions of appellate judges.
In fact, I think one of the principal weaknesses of the Supreme Court as it is presently constituted is the lack of experience the Justices have with the real world — even with the real world in a legal sense. The judges were not trial lawyers for regular everyday people; they were not trial judges. All appellate judges ever see are written documents (the arguments of lawyers, the documentary and physical evidence submitted in trial courts, and transcripts of testimony in lower courts). They don’t see witnesses. The only people they see in their professional lives outside their own chambers are lawyers during oral argument. Very few cases, in fact, get appealed. The vast majority have too little at stake to make any appeal financially practicable.
In short, a Court consisting only of people whose principal occupations have been as corporate lawyers, government lawyers, and appellate judges is a Court about as divorced from real life as possible. Is that really the ideal Court? Of course, Justice Roberts would think so. I’ve always believed that the vast majority of people who succeed in any given system believe that system is a true meritocracy. If Justice Roberts was an appellate judge, and if the Supreme Court consists of only appellate judges, is it really any surprise he thinks appellate judges make the best Supreme Court Justices?