February 27, 2008
Seeking deep thoughts on possible SCOTUS "whos"
Over at SL&P, I have this long new post about possible nominees for the US Supreme Court in the next administration. The post critiques Jeffrey Rosen's recent article at The New Republic, titled "Short Bench: Why the Dems lack Supreme Court nominees," and it also highlights the diverse background of some of the Court's most famous Justices.
Though the TNR article and my response are focused on potential SCOTUS nominees for a Democratic president, I am eager to hear from students with any deep thoughts about who should serve on the Supreme Court. In an interesting article available here, Professor Adrian Vermeule (who was a law school classmate of mine) has argued that we should have at least one "lay Justice" -- i.e., he contends that "an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court."
I am eager to hear the thoughts of 1Ls about "who" should be on the Supreme Court. In other words, Berman bonus points go to students who use the comments to (a) describe the type of person that should be a Justice, and/or (b) suggest specific persons that you hope/want the next President to consider.
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Although I am not very well versed in who’s who in the democratic party I do have an opinion of what who’s I think should be on the US Supreme Court. I would agree with Professor Vermeule to the extent that real world experience is helpful. However, I think justices should satisfy the same requirements as those arguing cases in front of them. I think US Supreme Court justices should have a law degree.
Posted by: Alexandra Dattilo | Feb 27, 2008 8:59:40 AM
I agree with Alexandra that Supreme Court justices should have a law degree. I think the the "real world" experience that Vermule desires from "an historian, economist, doctor, accountant, soldier or some other nonlawyer professional" should be presented through testimony to the Court and that those who have been trained to sift through the facts as presented are better suited to analyze the issues.
Posted by: Matthew Teetor | Feb 27, 2008 10:12:22 AM
I think it will be important to find someone who can effectively wrestle with the tough issues that are bound to come up as a Supreme Court Justice. For this reason, I vote for Jesse "The Body" Ventura, Governer of Minnesota.
Along the same lines, The Governator is my choice for the conservatives. The two have proven to make a good team in the past, especially when they teamed up on the film "Predator" in 1987.
Posted by: Chris Stanley | Feb 27, 2008 10:40:46 AM
Perhaps I am biased since I was an economics major, but I would like to see someone with a Ph.d in Economics, focusing specifically in Econometrics. I agree with Alexandra in that they should have a j.d. just simply from the fact that they would
But I think that real world experience is necessary, and econometrics, where all the great mysteries of the world such as intelligence or love can be quantified, would add a perspective very different from those ordinarily sitting on the bench.
(2nd choice would also be The Body, excellent insight Chris)
Posted by: Andy | Feb 27, 2008 10:50:34 AM
I find this a fascinating idea, and one certainly worthy of consideration. The longer I stay in law school—and the more Mentoring at Moritz lunches I attend—the more I am becoming aware of the insularity and arrogance of the profession. I think some of this is good, but too much is dangerous and works against the goals we purport to achieve. Lawyers, of course, are not the only people who can analyze issues from multiple angles. And one does not need to go to law school to practice law! (I hope you know we could all got to California right now and take the bar exam…)
I attended a great panels at the symposium last week that was great largely because of the diverse perspectives on the panel: one education researcher; one education professor; one sociology professor; and an attorney/law professor. Of course, if we go with Vermeule’s idea, I shudder to think over the battle of who gets to be on. I have not read the full article yet, but perhaps the “lay” position could be rotating, not a life appointment. But related in part to our talk in Con Law today, wouldn’t it be good to have someone on the Ct who really understands the sociological research that is put out there, the multi-variate regressions and other more complicated statistical models that people use to make their arguments? And yes, people working for the justices can do this, or experts can come in—but the Ct still has too much say over who can get in and how the data will be used. Or wouldn’t it be really wise to have an economist on the Ct? Think again about how many decisions we read early in Con Law that might have come out differently if someone on the Ct really understood economics.
I look forward to reading the entire article and thinking more about all this. But I am thrilled that someone put the idea out there.
Posted by: stephanie | Feb 27, 2008 10:50:42 AM
I'll put this thought up- How about Lawrence Lessig? I think if we're looking to place someone on the bench, we should also examine what traits they might bring and what issues will be dominant in the years to come. Lessig has a great background regarding intellectual property and copyright and I'd wager has a better grasp on technology than anyone currently serving as a Supreme Court Justice. He might be a little bit of a wild card in terms of his political leanings, but he'd be able to shine light into a field that I think will become increasingly important in the coming years. I'll say right off the bat that I'm not sure I can predict how Lessig would vote on any number of issues, but he'd certainly provide the court with new ideas and new perspectives in dealing with issues that it has yet to fully address.
Posted by: Sam | Feb 27, 2008 12:47:41 PM
To echo Sam's nomination, I certainly think someone so well versed in IP law would be an excellent edition to the bench. The problems for his chances would be that he isn't a judge (which Rosen seems to find so important), and that he isn't predictable. However, he would be a great candidate for a second term nomination. I'm just unsure about how well whoever the Dem POTUS would be could pitch Lessig to the far left.
Posted by: Chad Urban | Feb 27, 2008 1:19:22 PM
I think that in addition to IP law, general patent law seems to be a very hard area of the law which only a few people practice well. But we all know it is going to someone who has contributed to the campaign of the candidate and agrees with POTUS and the Senate on Roe v. Wade.
Posted by: Hyatt | Feb 27, 2008 1:23:36 PM
Lay SC judges present a lot more problems than they solve. I grant that it's an interesting idea, and I would fully support someone who was both qualified in the traditional sense plus holding some other professional knowledge as superior.
BUT as we've seen in Con Law, the justices and the attorneys arguing can hardly understand the law in difficult cases, let alone law professors and law students and I would argue that other professionals would not be able to comprehend the dialogue at all. If you asked a layperson, even if they were qualified in some other profession, to read the oral arguments and explain what happened in a given case, I don't think they would have a clue what was going on. Take for example some of the words we've learned this early in our legal training: res judicata, quantum meruit, specific intent, minimum contacts, implied reciprocal negative easements, and yes, even legisprudence. Would a layperson know what Am. Jur. was? No. Could they even read a brief and understand how to look up the footnotes or do research and know what authority was controlling? NO. They'd have to learn all that stuff and so much more- which is why we go to school and have to work for an entire career to get to that point. There is simply too much they would not understand.
I guess if the point of having a lay-justice is to shake things up a bit from a completely non-legal point of view, it might work. That makes about as much sense to me as deciding we want John Roberts to captain a nuclear submarine.
Posted by: Scott Rowley | Feb 27, 2008 1:24:47 PM
A few thoughts.
A) On a lay person-I think the point is that he or she would influence the other justices. In practice it is difficult to predict whether someone will actually yield influence in conference room or not. One would think that Scalia would given his intellect, etc.-but a common criticism of him (valid, I don't know?) is that he has not. Why necessarily would a doctor?
In addition, the opinions of doctors, soldiers, historians, economists, etc., do play a role already (and I think, arguably, a more influential role than they would from the bench). By contributing as 'experts' at the trial court level, later in briefs, and by scholarly work-they are able to shape the opinions of justices (particularly the "swing" votes). I imagine that we will see a historian(s) quoted in the upcoming 2nd Amendment opinion just as we've seen American Medical Association studies play a part in decisions on abortion. This method of influence allows for more flexibility (what might a retired infantryman contribute to a discussion on abortion?...oops, I guess we should have put a doctor on the bench).
B) I am not sure that the demand is that future justices have a certain title. I think the issue of judicial appointments is most important to the bases of both parties and the litmus test right now for both bases is predictability. It would seem to be easiest to predict the judicial temperment of a federal appellate-level judge so that is why the bias is strongest there. BOTH parties now worry about Souters-and a General Counsel type or BigLaw partner could more easily be a Souter(in their eyes). Paper trail seems to be the key. (see: Harriet Miers and Alberto Gonzalez..).
C) Though not at all disappointed with Bush's picks-I was a fan of Luttig.
I agree that Lessig would be an interesting (and cool!) pick for a Dems-but I think unpredictability will prevent that (see: B-he was once a conservative-libertarian, clerked for Scalia). FYI, he is mulling a run for Congress though.
Posted by: Nathan | Feb 27, 2008 3:31:16 PM
Maybe, instead of one lay justice, we should have the present 9 justices go out every summer and pretend to be a lay person. Have them do things that laypeople do everyday, force them out of the isolation of the law profession: take out a loan, work in a public school, work as a trash collector (that would be interesting - ha ha), etc.
Posted by: S. Lee | Feb 27, 2008 4:06:16 PM
I think Berman would be a good pick for the Supreme Court. He went to Harvard...
Posted by: Michael Wilt | Feb 27, 2008 6:40:42 PM
I think Sarah's idea is both interesting and humorous but also carries a real weight. Even if we get a lay supreme court justice they will immediately be immersed in the DC-political spectrum. We can't expect their outsider/lay person perspective to last for their entire tenure. I'm sure that some of the supreme court justices grew up somewhat normally before going off and becoming high-powered supreme court justices. Maybe forcing them to reconnect with the "real world" each summer would help them all stay more connected to what's really going on.
I do think a law degree is essential for many of the reasons previously mentioned. Even if the supreme court had someone who was highly versed in another area - econ, medicine, etc - certain aspects of the law would be difficult to understand and analyze (see the language of almost any opinion from pre-1900). Doctors aren't ever going to say, "why don't we bring an economist in to see if they think your cough sounds like pneumonia?" I know this isn't on exactly the same level but you see my point. Or maybe I just like to think there is a reasoning we are forced to suffer through 3 years of law school.
Posted by: Miranda Leppla | Feb 27, 2008 7:22:48 PM
I think that Harriet Miers has to be at the top of anybody's short list.
But seriously, I think what the Court lacks, as a result of the absence of O'Connor (and to some degree, Rehnquist), is a centralizing force. Since the addition of Roberts and Alito the Court has become overly-divisive, and a moderate who can provide some middle ground between the right and the left is much needed at this point. As for specific names, I think Cass Sunstein may be an interesting choice (and would give something for Prof. Berman to brag about, as they both hail from Harvard). https://en.wikipedia.org/wiki/Cass_Sunstein
Regarding Prof. Vermeule's article, the addition of a lay justice might not only serve to strengthen the Court's competence in specific areas, but may also add a level of objectivity to the Court. This lay justice would view legal arguments from a different light; not one unwaveringly bound in a personal legal ideology (see: every justice on the Court). Expertise on the bench, particularly in business/economics, would be invaluable for the Court. Additionally the appointment of a lay justice may result in more 'common sense' adjudication... and as William O. Douglas said, common sense often makes good law. With that said, I do realize that the addition of a lay justice is likely to be viewed as impractical in many ways, particularly for reasons noted by Scott above. However, it is certainly a provocative idea, and has some merit.
Posted by: Drew LaFramboise | Feb 27, 2008 7:31:08 PM
Sara - I love the idea! Maybe we have 12 Justices with only 9 working in chambers at any one time - then they could work year round, see more cases and get some new perspective.
Posted by: Scott Rowley | Feb 27, 2008 7:53:42 PM
Okay--here's an idea combining some of Sarah and Randi's thoughts. I do love the idea of having SCJs get out in the field, but maybe an easier way to do this would be to adjust the law school curriculum, to make sure that we have some basic econ knowledge, some understanding of statistics, etc. I think we could probably rework the curriculum to get a lot more out of it than we currently do. And I am beginning to wonder if the answer to Randi's last point, "Or maybe I just like to think there is a reasoning we are forced to suffer through 3 years of law school" is something that comes up all the time in law school--we do it this way b/c it's how we've always done it.
And the suggestion is for just to add some lay persons (maybe just one) to the bench. I think Vermeule makes an excellent point when he says, “lawyers have systematic and correlated biases induced by common professional training, but a bench composed of both nonlawyers and lawyers will have uncorrelated or random biases or at least a lower degree of correlation; the aggregate decisionmaking competence of the group will thus improve if the Court contains at least some lay Justices.” (from the intro)
And yes, maybe we don’t want economists telling us if we have pneumonia, but the economist could be helpful to us--should we take this medicine or that, what are the risks of continuing to go to work, etc. And certainly on the boards of the big hospitals, we’re going to see a lot of diverse backgrounds, with economists often adding their two cents on what paths hospitals should pursue.
Hmm, that's something I’d like to see—how does the diversity of academic perspectives of people running major businesses, hospitals, etc. compare to law firms? And do we know anything about what effect such diversity has on the overall “success” of those institutions? This is different than putting a lay guy or gal on the SC, but it would be interesting to see. My suspicion is, law is one of them most insular professions. And isn't there something disturbing about that?
Posted by: stephanie | Feb 27, 2008 8:17:50 PM
I think what is interesting though is that anyone with a degree from an undergraduate institution is able to apply to go to law school and if accepted, may attend. Therefore we have a range of backgrounds from undergrad - science, math, political science, etc. because there is no specific undergraduate degree you have to have already. To be a doctor, you must have taken specific science courses in undergrad. To get a PhD, you must have some previous relevant training as well. While political science may be the most common background for lawyers it is because of an interest in the field by those individuals. In relation to other professions, attorneys may actually be the most diverse upon entering their professional education. Maybe attorneys then forget other avenues of thinking once their legal mind takes over? It is also true, as Stephanie points out, that once we get through law school we may be the most insular profession. The legal mind may take over instead of prior experiences/training. However, my point is that I think that there may be more diversity among the legal profession in itself than in some other professions; this exemplifies what we are getting at - you don't have to have a specific training to be a great analytical thinker and so you can have other training and be a good supreme court justice. I just think it's probably beneficial to have this training - diversity of experience and opinion is necessary and great but I also think that there is a justified reason that we are being trained to be critical analysts of the law and court decisions specifically. Therefore, I think it is important to have a range of experiences among the justices but also that going to law school is important.
Posted by: Miranda Leppla | Feb 27, 2008 9:47:07 PM
I think that Vermeule makes a very interesting argument for adding lay justices to the Supreme Court. I personally think that diversity in all respects is very important and I think that having a lay justice would obviously add to the diversity of the Supreme Court. Someone outside of the legal community could add a perspective from a different profession as well as a different group in society. So I think there is much to be said about the possibility of adding a lay justice to the court. I don't know if this is relevant or not, but the people who make our laws are not all lawyers, so why do the people interpreting them have to be? I know that the legal field is very complex and I think that it would take some extensive training to introduce a lay justice to the many aspect of the law, however I think that this may be a small hurdle in comparison to the possible advantages of having a lay person on the Court.
Posted by: Page | Feb 28, 2008 11:24:28 PM
I agree with Mr. Teetor to put Professor Berman on the bench, but I don't know if that is possible sense Professor Berman is bald. I think we should put Ralph Nader on the bench so he will stop running for President.
Posted by: Chris Stanley | Feb 29, 2008 10:32:19 AM
I like Chris's suggestion the best suggestion by far, give Nader something else to do. Haha...
Posted by: Miranda Leppla | Feb 29, 2008 11:09:02 AM
^I can't write sentences correctly, sorry about that.
Posted by: Miranda Leppla | Feb 29, 2008 11:10:36 AM