The Court Sans Personalities

The current Atlantic Monthly has, as you’d expect, two articles on the Supreme Court. But they’re not about Roberts or the conservative-liberal divide. Thank God.

The first article, “Remote Control” by Stuart Taylor, Jr., argues that over the past 30 – 40 years the Court has become less involved with the real world. Taylor points out that the Court in the 1950s included a governor, former senators, attorneys general, solicitors general and SEC chairman. They had been prosecutors and had extensive experience in commercial law. Of the current Court, only O’Connor has held elective office and only Souter has presided over a commercial or criminal trial.

His argument is that the members of the 1950s’ Court had intimate experience with our political and judicial systems and, as a result, a good knowledge of the “beliefs and concerns of everyday Americans”. The current Court does not have similar experience as they have come from the appellate courts or academia, which are not exactly the places ‘everyday Americans’ inhabit. This is not good as their decisions are further and further removed from the lives we lead.

Further exacerbating the issue is that the average Justice stays on the Court longer; before 1970 the average tem was 15 years, since then it’s gone to 25 years. So, the opportunity for new blood to invigorate the Court is quite limited.

The second article, “Without Precedent” by Benjamin Wittes, argues that the Court doesn’t do a very good job. It “ignores its own principles and precedents…, misstates facts, and issues shoddy opinions”. Only someone with expertise in the workings of the Court can really comment on the accuracy or inaccuracy of Wittes’ claims. But, it is good to see someone raising the issue of the performance of the Court vis-à-vis the judicial, rather than a religious, system.