Amar on the backgrounds of Supreme Court Justices

July 25

Akhil Amar recently delivered the annual Robert J. Jackson lecture, focusing on the changing credentials of Supreme Court Justices. As most readers know, in the past a lot of Justices were politicians, statesmen, and advisors to Presidents. The modern trend is for Justices to be former appellate judges who graduated from elite law schools. Amar suggests that it would be better to have Justices with more diverse backgrounds.

Three quick reactions to Amar’s lecture:

1) I don’t think that the law schools Justices attended tell us very much about them. Each school is diverse; students are only marginally impacted by their professors; and any impact is diminished by the decades of time passing after law school and before nomination. We see this on the current Court. Both Clarence Thomas and Sonia Sotomayor attended Yale within a few years of each other, but we don’t expect Thomas and Sotomayor to share a common approach to law because they both went to Yale.

2) I agree that there are differences, on average, between the kinds of Justices who were former appellate judges and those who were politicians or statesmen. But I think it’s hard to say that any one vote can be explained by any one biographical fact. At the end of his lecture, starting around the 57 minute mark, Amar speculates that Chief Justice Roberts’ vote upholding Obamacare may reflect the profound understanding of the federal taxing power that he would have acquired working at high-level positions in the Executive Branch. But I wasn’t persuaded. Drawing these lines among the Justices based on their resumes requires making some pretty thin distinctions. Heading OLC or being an Assistant to the SG doesn’t give you that appreciation, as the Scalia and Alito votes would indicate; time at the Counsel’s office or serving as Deputy SG does, as we would see with Roberts. Of all the factors that may influence a Justice, I’m skeptical that the details of these experiences explain all that much.

3) It’s interesting that discussions of the Justices’ backgrounds tend to ignore the recent Supreme Court nomination of a Justice who did not fit the modern trend: Bush 43 nominee Harriet Miers. Miers fit the traditional pattern of the Presidential confidante who had not been a judge and did not attend an elite law school.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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