Posted by Jonathan Adler:
Do Judges Make Better Justices?
http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1234840409
In a recent speech, Chief Justice Roberts suggested that having more
former appellate judges on the Supreme Court makes the Court's
decisions less political. The NYT [1]reports:
Over the life of the Supreme Court, its members were quite likely
to be former governors, legislators, cabinet members, law
professors and practicing lawyers. That mix of backgrounds and
expertise might strike some as valuable, but the chief justice
suggested that it tended to inject policy and politics into an area
properly reserved for the law.
As late as 1972, when Chief Justice Roberts�s predecessor, William
H. Rehnquist, joined the court as an associate justice, former
federal judges were in the minority.
As a consequence, Chief Justice Roberts said, �the practice of
constitutional law � how constitutional law was made � was more
fluid and wide ranging than it is today, more in the realm of
political science.�
Since then, Chief Justice Roberts continued, �the method of
analysis and argument shifted to the more solid grounds of legal
arguments. What are the texts of the statutes involved? What
precedents control?�
That move, he said, has resulted in �a more legal perspective and
less of a policy perspective.�
I understand why the Chief Justice might think this way, but I am
skeptical. There does not appear for there to be much empirical
support for his claim, and reasons to believe that a Court made up
exclusively of former appellate judges might have other deficiencies.
If Chief Justice Roberts was implying that the court became less
political as the number of former judges on it rose, said Lee
Epstein, who teaches law and political science at Northwestern and
is one of the authors of the study, �the data don�t support it.�
And not everyone supports the idea that members of the court should
have uniform backgrounds. The psychological literature demonstrates
that �the more homogenous the group, the worse the quality of the
decisions they make,� said Tracey E. George, a law professor at
Vanderbilt and the author of a law review article about the
consequences of promoting former judges to the Supreme Court.
I am not eager to see a former politician on the High Court, but I
believe it would be valuable to have justices with greater trial court
and non-judicial experience.
References
1. http://www.nytimes.com/2009/02/17/us/17bar.html
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