Posted by Orin Kerr:
More on Supreme Court Experience:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241733784
My earlier post "[1]The Right Experience for a Supreme Court Justice"
drew some interesting comments, and I wanted to follow up. The point
of the post was that any person can only have so many experiences.
Although it would be nice if inidviduals had a wide range of
experiences, life is short and experience can be a bit of a zero-sum
game. Asking for a judge with experience A may mean getting a judge
without experience B.
A few commenters weighed in with the point that what matters is
experience on the Court as a whole, not for each Justice, and that my
post downplayed this point. [2]Here's commenter Prosecutorial
Indiscretion:
Your point is well-taken. That said, wanting the Court to involve a
breadth of experience does not mean every justice has to have a
ridiculously broad background. It just means that, e.g., having one
justice who's spent time in the trenches would be nice, so that the
Court as a whole would have the benefit of that perspective and
experience. Nine justices with antitrust experience would be a bit
pointless; one or two seems pretty useful.
On one hand, it's hard to disagree with this. I think everyone
acknowledges that in a perfect world, you would want different
Justices to have different experiences. In theory, the Justices with
more experience [3]could have an outsized-role in cases for which
their experience was relevant, leading to decisionmaking that was
better informed. All to the good.
At the same time, there are two limitations on this that I think are
worth noting. First, Supreme Court openings generally occur one at a
time. A President normally will not know if there will be any more
vacancies in his Term. Creating a group with diverse experiences can
work if you are selecting the entire group at once, like college
admissions officers creating an entering class with two shortstops,
four members of the math club, and two oboe players. But it's a lot
harder when a President has only one pick.
Second, I think it's worth questioning the ideal story of how
diverse experiences make a difference at the Supreme Court level. For
example, Justice Souter had several years of experience as a state
trial judge. Off the top of my head, though, I can't tell how this
impacted his work. It's not like I ever expected Justice Souter to
have an unusual influence or to bring unusual insights in decisions
that involved state court trial proceedings. Justice Blackmun was a
math major, but I don't see his opinions in technical or mathematical
areas any better than any other Justice. Justice Breyer has the most
legislative experience, having worked in the Senate; I don't think his
statutory opinions are particularly different than those of any other
non-textualist judge.
In short, it might be that diverse experience leads to better
insights, and that candidates with a particular past will be better at
certain cases or have a deeper understanding than others. But there's
considerable evidence that this often isn't the case, which should
temper the focus on particular experiences at least somewhat.
References
1. http://volokh.com/posts/1241726065.shtml
2. http://volokh.com/posts/1241726065.shtml#579879
3. http://lawreview.stanford.edu/content/vol61/issue3/Cheng.pdf
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