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.
There are other decisions that suggest that the Roberts Court is out of touch with the real-world effect of its decisions. Take the ruling this past term in Florence v. Board of Chosen Freeholders that jail officials have the authority to strip-search arrestees even if they present no threat of danger. The majority’s decision gave no indication that the justices recognized how such authority might be used arbitrarily against any of the nearly 14 million people arrested annually in the United States. And the Court made no mention that this discretion might be used to interfere with the fundamental rights of citizens who are arrested after exercising their First Amendment right to engage in nonviolent protest. Being arrested after a civil disobedience protest is a time-honored tradition in our country, from the civil rights movement to the anti-apartheid divestment movement to Occupy Wall Street. What would have happened to the civil rights movement in the South if Birmingham Public Safety Commissioner Bull Connor and his counterparts had been legally authorized by the Supreme Court to strip-search arrestees? How might this discretion be managed in the hands of modern public safety officials like Arizona Sheriff Joe Arpaio, who use their authority to target racial or ethnic minorities?
Empirical evidence has clearly demonstrated that background experience influences judicial decision-making. Former prosecutors often see the world of criminal procedure from a different vantage point than their criminal-defense counterparts. This can have substantive consequences in their decision-making. Likewise, the background experience of justices can powerfully influence their understanding of the cases that come before them. Who can forget that Justice Ruth Bader Ginsburg felt compelled to provide a tutorial to her colleagues about gender prejudice in the workplace when she read her dissent from the Court’s majority decision in the 2007 Lilly Ledbetter case (Ledbetter v. Goodyear Tire & Rubber Co.)? Justice Ginsburg understood why Ledbetter could work at Goodyear for nearly twenty years without knowing the salaries of her male counterparts. This understanding came not from the fact that Ginsburg is a woman but from her work representing women as a lawyer for the American Civil Liberties Union. And it’s not difficult to see how the World War II experience of retired Justice John Paul Stevens, the last active-duty military officer to serve on the Court, has influenced his views on the constitutional protection to be afforded to flag-burning and his views on the targeted killing of enemies during wartime.
Yet another result of the insular talent pool from which our Supreme Court is drawn is the inability of the justices to fully appreciate how their actions are perceived by average Americans. In determining whether to recuse themselves because of a potential conflict of interest, justices must determine whether their impartiality might be questioned by a reasonable person. This standard is set out at 28 USC Section 455, which applies to all federal judges. Although Chief Justice Roberts has not conceded that Supreme Court justices are bound by Section 455, he has asserted that in practice they adhere to this standard.
But even if, as Chief Justice Roberts contends, the justices consult one another about recusal, they may as well be looking in a mirror, given the similarity of their professional experience. How else to explain the conduct of Justice Clarence Thomas, who publicly lavished praise on his wife’s formation of a Tea Party organization that advocated overturning the Obama administration’s Affordable Care Act, despite the strong likelihood that the constitutionality of the ACA would be challenged in the Supreme Court? Justice Antonin Scalia’s bellicose defense of his decision not to recuse himself from a case brought by the Sierra Club against Dick Cheney in the infamous duck-hunting incident is perhaps the starkest example of a judicial tin ear, although Justice William Rehnquist’s decision to hear the 1974 Laird v. Tatum case—which involved Army surveillance of antiwar protesters—is largely credited with spurring the move to adopt an objective recusal standard in the Model Code of Judicial Conduct. (A year before joining the Court, Rehnquist had testified before Congress about the surveillance program on behalf of the Nixon administration.) But Chief Justice Roberts was also tone-deaf (although in a more thoughtful and respectful way than Scalia) in his 2011 State of the Judiciary address, in which he explained why he believes the Court need not be bound by the Model Code of Judicial Conduct, to which all other federal judges must adhere, and why the questions raised about the Court’s lack of a uniform recusal procedure before the healthcare decision were without merit. More recently, Roberts’s decision to depart from lockstep concurrence with the views of his conservative colleagues in the healthcare decision may improve public perception of the Court’s impartiality, but it cannot substitute for the creation of coherent, uniformly applied Supreme Court recusal standards.
The homogeneity of the background experience of the Court makes this need for uniform standards all the more urgent. It’s significant that almost every justice who sat with Thurgood Marshall on the Court recalled, at one time or another, the power of his stories about his days as a civil rights lawyer. Marshall’s tales about the injustices that befell his clients, the threats to his own safety and the lawlessness of Southern state court jurists were not presented merely to amuse his colleagues. As Justice Byron White once noted, Marshall told his fellow justices “much that we did not know due to the limitations of our own experience.”
If upcoming appointments to the Supreme Court are selected from the same pool from which the current justices are drawn, who will tell the assemblage of career judges and New York and DC insiders on the Roberts Court what they don’t want to know about how justice is meted out in twenty-first-century America? When will the Court adopt procedures that will give the public and those who litigate before the Court the opportunity to determine when a justice should remove himself from hearing a case in which his impartiality might reasonably be questioned? Given its racial and gender diversity, our current Supreme Court looks increasingly like America. But in important ways not visible to the naked eye, the Court reflects only a narrow slice of the legal profession—and of the country itself.
ALSO IN THIS FORUM
Bill Moyers and Bernard A. Weisberger: “The 1 Percent Court”
William Yeomans: “How the Right Packed the Court”
Jamie Raskin: “Citizens United and the Corporate Court”
Dahlia Lithwick: “One Nation by and for the Corporations”
Michael Greenberger: “The Roberts Court and Wall Street”
Craig Becker and Judith Scott: “Isolating America’s Workers”
Herman Schwartz: “Rewriting Antitrust Law”
Nan Aron: “The Way Forward”