STUART TAYLOR has argued that for all the debate over the Supreme Court's ideological, ethnic, and gender balance, the most salient imbalance on the current Court is the one in "the collective real-world experiences of its justices." Taylor and others bemoan the absence of justices who have held elected office and who possess recent experience practicing law. He blames this state of affairs for decisions that split hairs at the expense of reality, and for a lack of productivity.
The Supreme Court's recent jurisprudence offers much to criticize. But placing practitioners on the Court probably would not improve the situation, and appointing former elected officials could only make matters worse.
Note first the ideological issue lurking in Taylor's argument. Appointing politicians to the Supreme Court has a superficial appeal if the Court's proper role includes determining which public policies are most desirable. If that task should reside exclusively with the popularly elected branches, however, the case for Taylor's approach shrinks. Taylor and others emphasize that the Court which decided Brown v. Board of Education contained a former governor (Chief Justice Warren), three former senators, and several other justices who had held major government office. But, for all the credit Warren and his colleagues deserve for that decision, most modern observers, liberal and conservative, consider the Warren court far too result-oriented. This flaw surely stemmed in part from the penchant of former public policy makers to desire to make public policy.
In the post-Warren court era, swashbuckling political figures stand little chance of being nominated and confirmed. Today's politician-appointees are more likely to be policy tinkerers, prone to staking out the middle ground and using their status as swing voters to reshape disputed policies until they conform to their personal preferences. This approach may win applause from certain pundits and from whichever political party likes the result on a given issue, but it gives rise to the chief ill about which Taylor complains--the Janus-like quality of the Court's decisions.
Most of the hair-splitting that characterizes the modern Court has taken place because, in the difficult areas of law, centrist justices have dictated the result by splitting the difference between the more ideologically-driven factions. The two main difference splitters have been Justice Powell and Justice O'Connor. Powell, the quintessential legal practitioner and community leader, had never been a judge. O'Connor, the only current member of the Court to have held elected office, had only low-level judicial experience.
THE SUPREME COURT'S TANGLED JURISPRUDENCE on government-imposed racial preferences provides perhaps the best example of the ex-practitioner and the ex-politician combining to create incoherent mischief. To the unschooled, it would seem that college admissions programs conferring preferential treatment upon African-American applicants are either constitutional or not. When the Supreme Court encountered this issue in 1978 that's how it seemed to eight justices. Unfortunately, the eight split down the middle, leaving the outcome in the hands of Justice Powell. Powell reportedly was inclined to uphold the racial preference but, when advised by Thurgood Marshall that African-Americans might need preferences for 100 years, he balked. This policy-based uneasiness led him to split the difference, ruling that African-Americans could not be preferred for admission based purely on their race but that universities could take into account obstacles such applicants might have had to overcome because they are black.
University administrators refused to take this decision seriously, and promptly began using Powell's reasoning as cover for granting out-and-out preferences. Over time, some dropped the cover altogether. When the Supreme Court confronted the issue again 25 years later, there were two types of race-based university admissions programs--honest and dishonest ones. The honest programs simply awarded points to African-American applicants based on their race. The dishonest programs used subjective factors to reward such applicants, always managing to reward them just enough as a group to attain the desired racial balance.
In 2003, the Court reviewed an honest program used by the University of Michigan's undergraduate admissions department and a dishonest program developed by that same institution's law school. Once again, eight justices adopted the commonsense view that the result should be the same for both programs, but split down the middle as to the proper outcome. The swing voter this time was Justice O'Connor. In the ultimate form-over-substance decision, O'Connor upheld the preference program that relied on subterfuge, and struck down the one that dared speak its name. O'Connor then made an additional policy decision, this one addressed to Justice Powell's concern that had started the Court down its tortuous path--she determined that discrimination in university admissions, even artfully done, can persist only for another 25 years.
In addition to its legal incoherence, O'Connor's compromise produced unfortunate policy consequences. The University of Michigan had used a point system to admit undergraduates primarily because it wanted an objective admissions policy. The point system allowed Michigan taxpayers to determine in advance where their sons and daughters stood, and to know that the state's selection decisions would not be quirky. Justice O'Connor's decision overrode these legitimate interests. Thanks to O'Connor, the university now must treat white applicants less objectively even when they are competing with other whites, all in the name of maintaining a subterfuge for racial discrimination.
This fiasco and others like it raise the question of whether, even assuming that Supreme Court decisions should be policy-based, politicians turned justices will tend to make sound policy decisions. A large political body can be expected to represent the popular will and, with luck, make more good decisions than bad ones. But a given politician is no more likely than a given appellate judge to reflect popular thinking, and, for all that, appears no more able to identify or craft sound policies.
Finally, there is no reason to expect former politicians or recent practitioners to be more productive than former appeals court judges. Indeed, since appeals court judges perform essentially the same core tasks as Supreme Court justices, one would expect them to be more productive. And former politicians, unfamiliar with the work, are more likely to rely heavily on their law clerks. As Michael Barone has argued, reliance on these recent law school graduates probably contributes to the proliferation of separate opinions and the increasing absence of clear, sensible writing.
The recognition that something is amiss at the Supreme Court prompts good-faith critics to search for ways to improve its product. Taylor himself has proposed at least one helpful reform--term limits. But the best solution lies in finding judges with a track record of faithfulness to the written document, coupled with a modest judicial temperament. Former politicians and practitioners tend not to answer to that description.
Paul Mirengoff is a contributing writer to The Daily Standard and a contributor to the blog Power Line.