Doing Time: Prison, Law Schools, and the Membership of the US Supreme Court

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends most of her time in India and other parts of Asia researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as writes occasional travel pieces for The National.

About a dozen years ago I was sitting in an auditorium in Cape Town listening to a panel discuss constitutional law issues in the new South Africa. One of the panellists, judge Dikgang Moseneke, was particularly impressive and I recall his somewhat unusual background– certainly unusual compared to that of any current justice of the US Supreme Court.

Moseneke joined the Pan-Africanist Congress when he was 14. One year later, he was arrested and subsequently convicted of participating in anti-apartheid activity. He served ten years as a prisoner on Robben Island. While in prison he completed various university degrees and would later earn a law degree. He subsequently pursued a glittering career as a practicing attorney, until his appointment to South Africa’s Constitutional Court– the highest in the land. He served there until his retirement in 2016.

Now I’ve not studied Moseneke’s judicial record in any detail. All I know is his wikipedia entry praises him for his “towering legal mind” and calls him “a most independent-minded and imaginative jurist”. But I remember thinking at the time that serving time as a prisoner would give him a breadth of experience to draw on as a judge that would certainly be impossible in an American context. Our system of judicial selection is well-designed to shut out anyone who has any experience being on the wrong side of the law. Or, for that matter, especially in recent years, with doing anything remotely controversial.

The Flaws of Merricak Garland

I was thinking about Obama’s stalled Supreme Court nomination of Merrick Garland the other day, and that conference in South Africa came to mind. And my memory of that made me realize exactly what I think was so wrong in Obama’s choice of Garland as his nominee for former Justice Antonin Scalia’s old seat– and in fact, in a wider sense, what’s missing from political debates about who should serve on the Court.

Obama often seems to be shadowboxing with himself, and his pathological– and somewhat naive, IMHO insistence on bipartisanship– caused him to stumble badly in making this nomination.

And not that I make that statement, I’m not viewing the appointment through the lens of identity politics that is common for assessing such appointments. When considering Supreme Court justices– all of whom usually share common elements of background and similar experience– we tend to use aspects of identity as a proxy for experience.

Our current Supreme Court membership lacks any of the breadth of experience (not to mention any progressive sensibility) that characterized former members of the Court (with perhaps the exception of Justice Ruth Bader Ginsburg, who successfully litigated several important gender rights cases). But where is our Louis Brandeis– the so-called People’s Lawyer, who pioneered the use of science, and social science, in his “Brandeis brief”, and frequently acted on behalf of progressive legal causes that challenged monopolies and corporations and litigated aspects of workplace safety and pro-labor laws? And how about Thurgood Marshall, who successfully argued many cases key civil rights cases, the most famous being Brown v. Board of Education.

Merrick Garland is obviously intellectually able enough to serve on the Court (but more on that in a moment). He did, after all, graduate at the top of his Harvard College class before moving on to Harvard Law School. But at 63, he’s too old, too bland, too typical of the current mode of US Supreme Court justices, to be an apt choice for the position. Now, by too old, I don’t mean to imply he’s too old intellectually. But Presidents get very few chances to shape the membership of the Supreme Court, and Obama should have opted for someone younger, who would be expected to serve a longer term.

Democrats obviously thought that the failure of the Senate to confirm Garland’s nomination– despite more or less bending over backwards to select a nominee even Republicans could love– would cause outrage on the campaign trail.

Well, guess what, according to Politico, it hasn’t:

From Pennsylvania to New Hampshire to Arizona, Senate Democratic candidates repeatedly hammered Senate Republicans for essentially ignoring Garland’s nomination with a “Do Your Job” message they figured would resonate with swing voters. During well-publicized recess events, activists hounded GOP senators back in their home states.

””

“I heard almost nothing about it,” said Missouri Sen. Roy Blunt, who is in an unexpectedly tough reelection bid against Democrat Jason Kander. “I saw thousands of people. We did 106 events that involved lots of people and I think in passing, one person mentioned Merrick Garland.”

Obama seemed to be interested in chalking up a win, and didn’t really think through exactly what he would be winning.

If Obama had made a less anodyne choice, he could perhaps have galvanised some element of the Democratic party’s base to press for confirmation. But no one seems ready to agitate for Garland’s confirmation. Voters simply do not seem to care about the empty Supreme Court seat, especially when compared to other ore pressing issues. In the context of a discussion of an ongoing Senate race, GOP strategist Scott Jennings, who ran a super PAC backing McConnell in 2014. said, “The idea that voters were going to make a Supreme Court vacancy a more important issue in a Senate race than say jobs or health care was ludicrous the day it was hatched,” again according to Politico.

What Comes Next

So it looks like the Garland nomination is dead. It’s unlikely to be revived, as he wouldn’t be the ideal first choice of either of the major party candidates; he seems to be a candidate that only Obama could love. Again, I turn to Politico

Chuck Schumer was almost gleeful, exuberant at first because he thought he had a winning issue,” said Mississippi Sen. Roger Wicker, the chairman of the National Republican Senatorial Committee. “I think the American people are comfortable with the idea of allowing the electorate to speak in November about the direction of the court. And that being the case, as a campaign issue, I think it’s a wash.

Here’s something the next President should think about. Despite some differences in gender and ethnic background, Supreme Court justices overwhelmingly share one common characteristic.

Law School

There is some diversity in the law schools that members of the current Supreme Court attended. Three Justices attended Yale School (Alito, Sotomayor, Thomas), five Harvard (Breyer, Ginsburg, Kagan, Kennedy, Roberts, although Ginsburg, actually transferred to Columbia her final year, to accompany her husband who was working in New York). That’s it.

This is a remarkable fact– suggesting that the selection process is just not wide-ranging enough. I don’t think there’s any secret password that gets bandied about Harvard Square or New Haven that’s necessary to serve as an effective Supreme Court Justice. And there are plenty of fine law schools across the country, each of which has graduated numerous talented attorneys.

Interestingly, Presidents Richard Nixon and Ronald Reagan, with their strong California connections, were slightly more broad-minded in the law school qualifications they considered in their picks. Although for the most part, Nixon and Reagan chose candidates from Harvard– Powell and Blackmun for Nixon, although he also selected Burger, who attended what was then called St. Paul College of Law– and Kennedy and Scalia for Reagan.

Nixon and Reagan at one point went way out on a limb in selecting two candidates who didn’t attend Harvard or Yale. Rehnquist (Nixon) and O’Connor (Reagan)– both attended Stanford Law School, and as it happened, were members of the same class. Nixon was certainly alive to the class significance of the school one had attended. IIRC, he resented that lack of money prevented him from attending Harvard Law School, to which he had been admitted, and instead went to Duke.

Now, I won’t go so far as Senator Roman Hruska, who once famously defended Nixon’s ultimately unsuccessful Court nominee G. Harrold Carswell, who had been described as mediocre: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.”

As here expressed, this thought has been widely ridiculed. But there’s a kernel of something interesting here. Let me let you in on a little secret: despite its formidable reputation, constitutional law isn’t particularly intellectually difficult. Now note that I said intellectually difficult– the choices the Supreme Court has to make are certainly difficult, often because they involve finely balanced considerations, with merit to both sides of the argument.

To be sure, issues that make it up to review by the Supreme Court involve many areas of the law. But constitutional elements can be properly understood by many, many competent lawyers. Now tax law, that’s hard (at least in the period I attended law school, and worked for a leading white shoe law firm– most lawyers consider tax to be the most intellectually demanding area of the law). And as for other areas of intellectual endeavor– modal logic, anyone, that is downright formidable. There are not many minds capable of making real contributions in that area. But I digress.

My point is a simple one: anyone who tells you that only a few minds are worthy of sitting on the Supreme Court is full of it. There are thousands of lawyers who would make perfectly fine justices, most of whom didn’t attend Harvard or Yale. So why don’t we see any of these people nominated for a seat on the Supreme Court?

Religion

Another thing I noticed when I was researching this essay is the very narrow range of religions represented on the current Supreme Court, which certainly don’t reflect the overall breakdown of the country as a whole. Three current members of the Supreme Court are Jewish (Breyer, Ginsburg, Kagan), while five are Roman Catholic (Alito, Kennedy, Roberts, Sotomayor, and Thomas), as was recently deceased Justice Scalia. I’m not in any way suggesting that there should be a religious test for Supreme Court membership– but only that I found the narrow range of religious faith of sitting justices to be an interesting tidbit.

What I’d Like to See Discussed Regarding the Next Supreme Court Pick

The Supreme Court selection process is highly politicized, and it has become the convention that nominees don’t discuss anything substantive during the vetting process. For some who’ve been groomed for the position, this has mean never taking a controversial position on anything throughout a government or academic career– and certainly done nothing so radical as taking a political or for that matter any, decision that results in ending up in prison.

But I would like to see more attention paid to the type of experience that a potential judge would bring to the table. So how about candidates who have done public interest work, served as public defenders, held elective office, been plaintiffs’ attorneys, or specialised in qui tam cases? Why do we seem only to see academics, corporate lawyers, or those with extensive Department of Justice experience?

And I think the time has come to declare a moratorium– temporary, perhaps– on candidates who hold Harvard or Yale law degrees.

Print Friendly
Tweet about this on TwitterDigg thisShare on Reddit0Share on StumbleUpon0Share on Facebook0Share on LinkedIn2Share on Google+0Buffer this pageEmail this to someone

30 comments

  1. diptherio

    The reason for the elitism is obvious, right? The system is and has been designed by elites to serve their interests. No big mystery there. Should we declare a moratorium on Haavaard and Yale law grads? Sure, but I’d take it one step further. The next Supreme should have to come from a State school. I know a couple people who’d I’d love to have on the Supreme Court who graduated from the Univ. of Montana law school.

    There are plenty of people who would make good justices everywhere, not just at the two biggies, and not even just in the “Ivy League.” Us fly-over staters should demand some representation.

    1. tegnost

      definitely…a little too much inbreeding going on with predictable consequences. This crazy election combined with a split court is making me wonder, when so few are telling so many to get in line, whether or not we’re headed for a legitimacy crisis. Also found the point that constitutional law is not the hardest track interesting.

      1. Mike G

        Most of Wall Street also come from the same inbred little club of Ivies.

        Harvard and Yale’s claim to innate meritocratic superiority, always tenuous at best, died with the egregiously awful presidency of George W. Bush.

        The rise of credentialism has been a sad marker of the decline of opportunity in this country in the last few decades.

      2. Jerri-Lynn Scofield Post author

        It always amuses me when Obama’s pedigree as a constitutional law professor is touted– he’s never just a plain old law professor, but always a professor of constitutional law.

  2. Jim Haygood

    William French Smith, Reagan’s attorney general, laid the foundations of our present-day conviction mill by introducing harsh federal sentencing guidelines which essentially removed judicial discretion.

    By no coincidence, Smith was a graduate of Hahhhhhvid Law School. Indeed, he was a direct descendant of Urian Oakes, the fourth president of Hahhhhhvid College.

    Like France’s énarques who’ve presided over the country’s stately decline, America’s inbred Hahhhhhvid-Yale axis (with the eminent public intellectual George W Bush being a graduate of both) has produced utterly mediocre results. The Ivy League is an incubator of imperial decline.

    The milk has curdled, and the cats won’t drink it.

      1. Jim Haygood

        Don’t we miss the dashing Anthony Eden … “Eton College, where he won a Divinity prize and excelled at cricket, rugby and rowing, winning House colours in the last. After the war he studied at Christ Church, Oxford.” — Wikipedia

        1. Jeremy Grimm

          I chased down a Wiki read on Anthony Eden but I’m not sure why you make reference to him. Is he in some way particularly outstanding in his mediocrity? I would think he would have to be truly outstandingly mediocre to stand out from other mediocrity produced by the best schools and meritoriously exulted to high levels. Why did you single him out?

  3. Matthew Saroff

    I would also suggest that the time has come to place a temporary moratorium on sitting federal judges for nominations.

    Being a judge is not practicing law, and if you look at the careers of the current justices, there has been very little practice of law.

    There has been judging, and teaching, but (at best) the practice of law has been only an occasional hobby.

    1. Jerri-Lynn Scofield Post author

      Never. He’d never take it. He would have to work too hard and wouldn’t be able to pull in the beaucoup bucks that he no doubt regards as his due as soon-to-be ex-leader of the free world.

  4. Jim A.

    Well he was never intended to serve on the court. He was chosen to be inoffensive enough that the refusal of the Republican leadership of the senate’s refusal to even consider a Democratic nominee to replace Scalia would be seen as a partisan refusal to do their job. And really, “more progressive than Scalia” is such a low bar that almost anybody would have been a serious swing to the left.

  5. weinerdog43

    For a long time, I had been a fan of Larry Tribe as a potential nominee for the Supremes, but I have lately come to agree with the author about the insufferable elitism that emanates from Harvard & Yale. Despite his pretty good credentials, Tribe has shown some amazing lapses in judgment. The whole concept of corporate ‘personhood’ is an abomination in my opinion, and he is right with fat tony scalia on that issue.

    Anyway, despite William O Douglas teaching at Yale, he came from Minnesota and Oregon. He took no prisoners and I think the court needs someone like him now more than ever.

    1. Larry Motuz

      ” The whole concept of corporate ‘personhood’ is an abomination in my opinion, and he is right with fat tony scalia on that issue.” I agree.

      I was reading Bill Moyers article about how democracy can be saved, and I wrote:

      “How can Democracy be saved?

      “I would think that the first step would be to recognize that the Bill of Rights is about human rights and freedoms which are preserved through due process without which there is no fundamental justice.

      “It is human beings who are the persons who have such rights and freedoms.

      “These human beings are not fictive persons created by Charters and laws. They are real persons always.

      “And, when such human rights are extended to fictive persons, problems invariably arise. Fictive persons should constitutionally have limited rights and severable rights, not inalienable ones.

      “It is the granting of human rights to fictive persons that protects and preserves plutocracies.The rights to life, liberty and the pursuit of happiness, or to security of the person, to equality before the law and the protection of the law, to freedom of religion, to freedom of speech, to freedom of assembly and association, et cetera, have nothing to do with the granting of human rights to corporations; and to think otherwise is to corrupt the human meaning of fundamental justice.”

      And I said, “Start there, please!”

      It will take non-Ivy League justices to accomplish that goal.

    2. Jerri-Lynn Scofield Post author

      I worked as a research assistant for Larry when I was at HLS. He’s too old now– more than 70– and he antagonized way too many people when he borked Robert Bork back during the Reagan administration. Also, the Court currently has two ex-HLS profs on it– Kagan and Breyer. How many more does it need?

      Remember, Court appointments offer lifetime tenure, and I believe a President should certainly appoint people who can serve a long term.

      BTW, I noticed that the S African Constitutional Court that I discussed in the piece limits its judges to single, twelve- year terms.

      My comment on a moratorium was a bit tongue in cheek, and there are certainly plenty of H and Y grads who might bring broader experience to its membership.

      I just wanted to post something that would spur some thought on what types of things we should consider as a new candidate is put fwd for Scaia’s old seat.

      1. weinerdog43

        “I just wanted to post something that would spur some thought on what types of things we should consider as a new candidate is put fwd for Scaia’s old seat.”

        And for that, I thank you sincerely! Great article.

  6. robnume

    The Supremes are supremely political and always have been. I’ve enjoyed referencing and reading Peter Irons’ book, ” A People’s History of the Supreme Court,” over the years. Because of this nation’s overwhelming shift to “globalism.” we aren’t likely to see any “activist” judges nominated for this lifetime position. We will see judges who are aligned with the “Federalist Society,” a scourge, IMHO, which I encountered often while studying law – as a paralegal – 16 years ago. As you astutely pointed out in your article, Jerri-Lynn, our recent Supreme Court appointees have all hailed from either Harvard or Yale, as have our U.S. Presidents and most, if not all, public policy administrators and pretty much all of the CEO’s you can name. Regulatory capture via the revolving door in public policy administration and industry are rampant. This, and more, is what happens when crony capitalism takes over. Cloaking itself in “democracy,” it truly is a giant “vampire squid” sucking the life out of its host even to its own peril. The tale of the “Scorpion and the Frog,” is the tale of America today.

  7. Jerry

    Thanks for writing this post. The next nominee should be a criminal defense lawyer from a Midwest law school– a Protestant or an atheist.

  8. Sammy Maudlin

    Excellent post Jerri-Lynn.

    Unfortunately, the problem is even greater than lack of diversity of life experience or even law school alumni on the Supreme Court bench. According to this Reuters special report, the mere practice of law before the Supreme Court is becoming an ultra-exclusive club.

    The bottom line is that unless you are one of the 66 members of this club, your client’s chances of having certiorari granted are infinitesimal. Although these 66 lawyers account for far less than 1% of all attorneys who filed appeals to the Supreme Court, they were involved in 43% of the cases actually argued there.

    Given the tremendous power the Court wields, Both trends are extremely troubling. Half of the 66 lawyers clerked for Supreme Court Justices, and others are friends. Can these lawyers really challenge the Justices? Diverse ideas are unlikely to be presented and considered IMHO.

    Unfortunately, the legal community remains largely silent on the issue.

  9. Dick Burkhart

    You might add one of our greatest Supreme Court justices, William O Douglas. He was also one of the most unconventional, in both background, lifestyle, and political / legal passions.

  10. walt

    It’s before your time, but I want to mention Earl Warren, who had an unparalleled resume, including, “In 1914 he earned his J.D. at the University of California, Berkeley School of Law (Boalt Hall).”

  11. Glenn Becker

    His Mediocrity was named Carswell, not Cardwell.
    As for Judge Garland, this dismissive rejection off his nomination without citing a single opinion of his that the author finds offensive to her conception of justice is Carswellian in its reduction of a complex choice to a very few of the relevant criteria. She deems Garland’s esteem among conservatives as well as liberals a dubious badge of moral vanilla, and conceives of no possibility that Garland’s judicial attributes might have impressed Obama as much as the political calculations of what sort of nominee might gain Senate confirmation. While addressing genuine issues in the utility of broader experience on the Supreme Court, the article is a cynic’s delight.

    1. Jerri-Lynn Scofield Post author

      Fixed it! You are correct re the spelling (and that’s what I wrote originally– didn’t notice that autocorrect had stepped in and ‘corrected’ my copy, and wouldn’t have realized it if you hadn’t pointed it out, so thanks.) Harrold also correctly has a double r in this case.

      And as to being cynical– guilty as charged. My principal objection to Garland is his age– I think a president gets few opportunities to nominate a Supreme Court justice, and I believe should select for a candidate who can serve (at least in theory) for a long time.

  12. Procopius

    I know we’re never going to get a justice who has experienced actual prison time, but I’d be very happy if we got one who has spent some years as a Public Defender. As I understand it, none of the sitting justices has actually practiced criminal law at all. I think many of their Fourth Amendment decisions have been terrible, probably because they are too willing to believe prosecutors.

Comments are closed.