The media is full of articles about the mechanics of replacing the late Justice Scalia on the Supreme Court. I haven’t seen any discussion of the kind of person that should be appointed, however, beyond “liberal lawyer/judge” or “conservative lawyer/judge.”
I wonder if the right answer isn’t “not a lawyer or judge.” The Court already has eight lawyers, all of whom were previously judges (list of past justices who were not). That gives rise to the potential for groupthink on issues such as “should we encourage people to come down to the courthouse and litigate this kind of thing?” (if you’re a lawyer, generally litigation seems like a productive activity!)
A lot of the Supreme Court cases that have recently been in the news aren’t technical questions of law. Should parts of the government, e.g., state universities, treat people with different skin color differently? Should states be required to offer two men or two women a civil marriage?
Why not a philosopher to replace Scalia, for example? He or she can still have plenty of clerks with law school degrees.
Readers: What kind of person would you like to see on the Supreme Court?
Related:
- “What Would Scalia Want in His Successor? A Dissent Offers Clues” (nytimes), which Scalia pointed out the lack of intellectual diversity on the Supreme Court (but did not go so far as to advocate for a non-lawyer)
I would gladly take the first person off the street who understands nothing more than the principle that a crime committed by an individual becomes no less a crime when committed by government in the name of the people.
I would gladly take the first person off the street that understood the difference between a human being and a corporation,
Someone who tries hard to analyze public policy, not religious dictates.
I would like to see a wicked-smart economist. Wicked smart.
Some of what the Supreme Court does is political, e.g. abortion, race based preferences, gay marriage, and for those sorts of issues one would not need to be a lawyer because those sorts of decisions are not really based on law (though if what the court is deciding is not law it is hard to see why the court is involved) but a lot of what the Supreme Court does is technical and for those sorts of issues you would need to be a lawyer.
There is no constitutional requirement for a Supreme Court justice to be a lawyer. So far, all 112 have been lawyers, so there is a sort of unwritten requirement.
However, one thing about the U.S. is that there are tons of lawyers in this country. The pool of lawyers are big enough that even if you restrict yourself to it, you can get just about any flavor of judge you want. It would be different if being a lawyer was a requirement for a whole host of jobs that were less directly involved in legal issues. The preponderance of lawyers in the federal and state legislatures is a much greater concern.
Elected officials used to be put on the Supreme Court fairly often. The last one was Sandra Day O’Connor, who had been the Republican floor leader in one of the Arizona legislative chambers. Its now pretty much all judges. The trend towards narrowing the effective qualifications to be a Supreme Court justice -you also seem to need a law degree from either Harvard or Yale- is worth debating. Arguably, it may be more compatible with a Supreme Court which is more technical and less political in its approach to cases, which most people want. But it may also encourage group-think as you noted.
My requirements for competence would ideally include:
– Not from the Harvard/Yale groupthink machine (obvious at this point, isn’t it?)
– worked at a retail job for more than 6 months while younger (any age; shows ability to deal with and understand wide swath of different people)
– worked at a job at any age where there were real, physical consequences to screwing up, e.g. milking a cow too soon after pregnancy (blood in milk, means the entire tank must be discarded) ; anything involving machinery with quality control – this shows ability to understand actual, hard limits
How about a man who has paid child support for a kid he never sees. Or a man put on supervised visitation of his own kid. Or maybe a man falsely accused of a sex crime. Such a man would have had his eyes opened in a way that he would not get at Yale or Harvard.
Tom – How do you tell a wicked-smart economist vs a regular smart economist? is it based on the ability to predict the future? Paul Krugman?
We have at least 12 months to discuss this.
I think Trump would be open to Philip’s suggestion. Hitlery, not so much.
Todd Anthony — Assistant Professor of Psychiatry & Neurology, Boston Children’s Hospital, Harvard Medical School
Mostly to provide professional counseling to the eight other justices during private conference where they reach decision.
I think Jon Stewart is looking for a job.
I think there was a discussion buried in NY Times article about how long confirmations take. There used to be more politicians on the court (that’s not a put down, I’m all for professional politicians, as long as they have some integrity and are not impervious to empirical evidence – public philosophers if you will). I do think the justices should have legal training and understand precedent and legal argument, but not necessarily be legal scholars/judges themselves.
The problem is – confirmation hearings – the more abstruse and technical their professional history is, and the fewer simple questions they answer, the easier the confirmation goes in recent history. They probably need to have never uttered any opinion on guns or abortion.
This is a variation on the Mr. Smith goes to Washington meme. It’s the romantic idea that ignorant people possess a certain kind of wisdom that the trained people lack, or have lost along the way. I buy into this meme to a certain extent. But not enough to really want a non-lawyer on the federal bench. I think managing law clerks requires acquired expertise.
What I do want is lots more legislators who are not lawyers. Lawyers write lousy laws. Some software engineers produce lousy apps for analogous reasons.