How to Bring the Supreme Court Back Down to Earth

By EMILY BAZELONFEB. 15, 2016 COMMENT
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Seven of the eight justices on the Supreme Court today all come from the federal appeals courts. (So did Justice Antonin Scalia, who died Saturday.) Only Justice Anthony M. Kennedy, who was a judge in California, served outside the East Coast cities of Boston, New York, Philadelphia and Washington. All eight attended law school at Harvard or Yale. None ever held elected office. Today’s court is “in some ways the most insulated and homogenous in American history,” as Adam Liptak wrote in 2009.

And so, here’s a question for President Obama, as he and his advisers are making their short list and checking it twice: Should the next justice bring a diversity of professional experience not currently on the court? Would a nominee who comes from outside the bench excite the country?

If every justice must have credentials like those currently serving on the Supreme Court, then the definition of who is qualified has become exceedingly narrow. “At a time when Americans are worried that the elite are running the country, and not doing a good job of it, this is the most elite group you could have,” says Benjamin Barton, a law professor at the University of Tennessee, Knoxville, who has studied the pre-appointment experience of Supreme Court justices. “And it didn’t used to be this way.”

That’s true. Since 1987, when a Democratic Senate rejected Robert H. Bork, President Ronald Reagan’s nominee to replace Justice Lewis F. Powell Jr., for his unapologetic far-right views, presidents have often played it safe by nominating innocuous-seeming federal judges, with short or bland paper trails. But former federal judges were in the minority on the Supreme Court until the 1970s. During the three decades before that, the historian David Garrow writes, “president after president named experienced politicians to the high bench.” Among President Franklin D. Roosevelt’s appointments were two Southern senators, a chairman of the Securities and Exchange Commission and a governor of Michigan. President Harry S. Truman nominated his Treasury secretary (who’d also been a member of the House of Representatives), his attorney general and two Midwestern senators.

The politician who left the greatest mark on the court is probably Earl Warren, a former governor of California. President Dwight D. Eisenhower nominated him as a reward for his help securing the 1952 Republican presidential nomination. Chief Justice Warren’s selection “might be regarded as a scandalous act of using a Supreme Court seat as simple political barter,” Mr. Garrow points out. Instead, he is generally regarded as one of the nation’s most successful chief justices, because the country reaped the benefit of his leadership experience. He led the court to its unanimous and historic 1954 ruling against school segregation, in Brown v. Board of Education, and to an ensuing series of decisions protecting civil rights and expanding due process in criminal cases. His closest partner on the court, Justice William J. Brennan Jr., came from the New Jersey Supreme Court, rather than the federal bench.

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When he ran for president, Mr. Obama expressed interest in nominating someone like Chief Justice Warren to the court. So far, however, he has chosen justices with conventional résumés. Justice Sonia Sotomayor was a prosecutor, a federal trial judge and a federal appellate judge. Justice Elena Kagan, a former dean of Harvard Law School and solicitor general, was nominated to the federal appeals court in 1999 by Bill Clinton after working for his administration, but the Senate didn’t vote on her nomination and it lapsed. They increased the number of women on the court to three from one, and Justice Sotomayor is the first Latina member of the court. But the diversity they bring doesn’t extend to their professional experience. (To be fair, it would be hard for a single nominee to break all the barriers at once.)

There may be a pragmatic rationale for Mr. Obama to stick with the Sotomayor-Kagan strategy this time around. Before the president said a word about who his nominee would be, Senate Republicans, including the majority leader, Mitch McConnell, demanded that Justice Scalia’s seat be left open until the next president is chosen in November. One plausible riposte would be to nominate an apparent moderate with a traditional résumé who was recently confirmed by the Senate to an appeals court, with plenty of Republican support or even unanimously. (Three examples: Judge Srikanth Srinivasan of the United States Court of Appeals for the District of Columbia Circuit; confirmed 97 to 0. Judge Jane L. Kelly of the Court of Appeals for the Eighth Circuit; confirmed 96 to 0. Judge Paul J. Watford of the Court of Appeals for the Ninth Circuit; confirmed 61 to 34.) Such a choice would put pressure on Republicans by allowing the president to argue that blocking it is an act of pure obstructionism.

Or conversely, maybe Mr. Obama only has a prayer if he goes bold, and comes up with someone outside the appellate courts who he can “really whip up support for, and make the Republicans nervous about the consequences if they won’t bring up for a vote,” says Lee Epstein, a political scientist and law professor. For instance: a politician or other figure from a swing state, or from a minority group, who could lay claim to a constituency that Republicans — or at least some senators who are up for election — care about. Mr. Obama could try to come up with his own Earl Warren: a politician with a source of popular support, who would bring firsthand knowledge of how the other branches of government operate.

This kind of diversity, in itself, would benefit the court, Judge Richard A. Posner of the Court of Appeals for the Seventh Circuit, argues in his new book, “Divergent Paths.” “That is how it should be,” Judge Posner wrote in an email, looking back to the days when politicians were well represented on the court. He pointed to the result in Clinton v. Jones, a widely criticized 1997 ruling that said that a sitting president could be sued in civil court, despite it being a burdensome distraction. “If there had been a politician on the court, the Paula Jones case would have come out differently — the politician would have told the other justices: no sex case for a president! Let him serve out his two remaining years, then throw him to the courts.”

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The campaign finance case Citizens United v. Federal Election Commission is another example. Could a justice who’d held elected office have prodded the majority to think harder about its claim that political contributions to “independent” groups “do not give rise to corruption or the appearance of corruption”?

The last justice with experience in elected office was Justice Sandra Day O’Connor, who had served in the Arizona State Legislature. “She was always vaguely looking for where the public was,” Professor Epstein said. “I think that affected her decision making. We haven’t had someone like that in a long time.”

Justice Thurgood Marshall offers another model for Mr. Obama. When President Lyndon B. Johnson chose Justice Marshall for the court in 1967, he had been a federal appellate judge and had served as solicitor general — but most important, he had worked for decades as a civil rights lawyer. Justice Marshall fought segregation in education, and won in the Brown case. He successfully challenged racially restrictive real estate covenants. He tried a case in Oklahoma in which his client “‘voluntarily’ confessed after he was beaten up for six days,” Justice Marshall said. He represented defendants who faced the death penalty. A colleague, Justice Byron R. White — whose résumé included a stint as a professional football player — credited Justice Marshall with conveying to the other members of the court “much that we did not know due to the limitations of our own experience.”

Today’s court includes two former prosecutors (Justices Sotomayor and Samuel A. Alito Jr.) and no former defense lawyers. What difference does that make? In The Washington Post, Radley Balko has argued that the court has a “massive blind spot” when it comes to abuses by the police and prosecutors. Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund Inc., wrote a 2012 article in The Nation headlined “A Court Out of Touch” and points to Florence v. Board of Chosen Freeholders, a 2012 case in which the court decided 5 to 4 that someone who has been arrested can be strip-searched in jail without reasonable suspicion — in other words, even if they presented no threat.

“When you think about the increased likelihood that African-Americans will be stopped and arrested, it’s fairly astonishing that a perfectly innocent person who has been arrested, and has made no indication that he is a threat, can be strip searched,” Ms. Ifill told me. “What Marshall did on the bench, when the justices conference about a case, was to say, ‘Let me tell you how it happens.’”

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That kind of perspective doesn’t necessarily change the outcome of a case. But it can. In 2009, the court heard the appeal of Savana Redding, who was strip-searched in school when she was 13, after a report that she’d given a classmate prescription-strength ibuprofen. At oral argument, some of the male justices shrugged off the impact of a strip search. Justice Stephen G. Breyer compared it to changing for gym. Justice Ruth Bader Ginsburg gave a pointed interview to USA Today a few weeks later. “They have never been a 13-year-old girl,” she said of her colleagues. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.” A month later, in June, the court ruled in Ms. Redding’s favor, 8 to 1, saying that the search violated her constitutional rights.

There’s no way to eliminate an individual’s blind spots; we all have them. But a group of nine people offers the possibility of correcting for at least some of them. Ms. Ifill argues that rather than accepting the narrowed constraints on the nominees for today’s court, Mr. Obama could view the Republican opposition as freeing. “I’m struck by Reagan’s appointment of Sandra Day O’Connor,” Ms. Ifill says. “He probed and he found someone who wasn’t obvious.”

Maybe it’s time for a magic ingredient — one that would bring a kind of wisdom to the court it currently lacks and would shake up the inevitable political battle to come, by introducing an element of surprise.

Correction: February 16, 2016
An earlier version of this article misstated Justice Elena Kagan’s experience prior to her appointment to the Supreme Court. While she was nominated to the federal appeals court, she never served as a federal appellate judge. The earlier version also described Sherrilyn Ifill currently calling the Supreme Court “out of touch.” That phrase appeared in the headline of a 2012 article by Ifill.

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