With three women, a Latina and an African-American man, the Roberts Court is the most racially and gender-diverse in the Supreme Court’s history. But in one critical way, the Roberts Court is also the least diverse. A recent study by Benjamin Barton, a professor at the University of Tennessee’s Knoxville College of Law, provides empirical proof that the professional background experience of the justices on the current Court is narrower, more uniform and less diverse than that of any previous Court. As a result, the justices on the Roberts Court lack, on the whole, the kind of legal experience that would give them intimate knowledge of the clients, legal issues, political context and real-world consequences of many of the decisions they issue.
The uniformity of the justices’ work histories is remarkable. All but one were federal appellate court judges (Justice Kagan was solicitor general of the United States), and of those eight, half sat on the DC Circuit Court of Appeals. Almost all of the current justices spent the bulk of their careers as government lawyers or judges rather than in private practice. None have substantial experience representing criminal defendants at trial. None have served in elective office or even as judges on state courts.
According to Barton’s study, the justices of the Roberts Court have had only “54 years total private practice experience, the absolute lowest of any Supreme Court,” and “even the time [they] spent in private practice is of a different kind” from that of past Supreme Court justices. The justices on the Roberts Court have almost all practiced as corporate counsel or with large firms, which “tend to represent corporations or businesses rather than individuals.” Only one, Justice Kennedy, has worked as a solo practitioner; all have spent the bulk of their professional lives either in New York or Washington, DC. Indeed, the Roberts Court justices have lived and worked more total years in Washington than any previous Court.
It’s perhaps no surprise that the justices selected to sit on our nation’s highest court are drawn from the most elite ranks of the legal profession. Although the Constitution doesn’t require it, all justices throughout our history have been lawyers, guaranteeing that they would be drawn from the educated elite. But it is remarkable that eight of the nine justices on the current Court have graduated from only two elite law schools: Yale and Harvard. It is even more remarkable that the narrow scope of the current justices’ background experience represents “a substantial departure from previous Supreme Courts” and is even out of step with the contemporary legal profession. Unlike the Court’s current members, the vast majority of lawyers gained their experience in private practice, nearly 50 percent as solo practitioners. Only 3 percent of lawyers in the United States serve as judges, and less than 10 percent are employed by the government.
Barton worries that this absence of diversity on the Court leaves it lacking in justices whose decision-making is informed by a certain “practical wisdom,” and there’s plenty of evidence that he may be right. A series of controversial 5-4 decisions suggests that a majority of the Court—led by its conservative faction—may indeed lack the practical wisdom that can be gleaned from regular interaction with ordinary citizens, clients and communities. Perhaps the starkest example is the Citizens United decision, a stunningly short-sighted and radical restriction on Congress’s power to place limits on campaign contributions and expenditures. And the Court’s failure to consider the effect of its decision on the integrity of state courts, for example—where judges are required to be impartial but are elected in campaigns that increasingly involve multimillion-dollar donations—was a remarkable oversight that underscored the need for a justice on the bench who has run for elective office or served as a state court judge, like Sandra Day O’Connor.