Not like us..

What’s Missing from the Supreme Court

America’s top justices are less like the rest of America than ever before.

By JOHN F. HARRIS and MATTHEW NUSSBAUM

If Brett Kavanaugh’s swift, steady climb up the American legal ladder clears one more rung, the Supreme Court of the United States will have a majority of justices, five of them, who as young adults previously worked there in intensely coveted positions as clerks.

It will have seven justices who, before joining the court, worked in pivotal chapters of their careers as favored subordinates to powerful figures in Washington, D.C. It will have eight people who served tenures on federal appellate courts.

And it will have nine justices — all of them — who took their legal educations at Harvard or Yale. This actually represents no change, since retiring Justice Anthony Kennedy also went to Harvard.

Kavanaugh’s ascension would further ratify a trend that has been building for a generation: a court of careerists.

A generation of apple-polishers and résumé jockeys is one byproduct of the decades-long partisan war over control of the court. Legal interest groups, such as the conservative Federalist Society, identify like-minded activists and scholars they hope will someday serve on appellate courts and the Supreme Court early in their professional lives. Presidents want to nominate justices who won’t offer personal or ideological surprises in the confirmation process or once on the bench.

Yet in nominating a conservative prodigy who checks all the conventional boxes—Yale Law, a Supreme Court clerkship, a stint in the Bush White House—President Donald Trump guaranteed that the court will again have zero members who have ever held elective office. Only one who ever served in the U.S. military (Samuel Alito, for three months active duty in 1975, followed by several years in the Army Reserve). Zero who started a business. Zero who went abroad with the Peace Corps. Zero, even, who zigged and zagged through their 20s or early 30s—in the way that millions of ultimately successful Americans have done—between travel here, a false career start there, a wandering path in which they wondered with an open mind what they really wanted to do in life.

These nine people knew from early on: They wanted to be legal stars. They all proved uncommonly adept at shimmying to the top of the greasy pole.

There’s nothing wrong, of course, with being smart and motivated at an early age. But legal scholars say the modern court is defined by a paradox. By historical standards, it has a strong measure of demographic diversity, with three women, an African-American, and a Hispanic-American. It has ideological diversity, with the cleavage between liberal and conservative factions obvious in countless decisions. In terms of life experience, however, its members occupy an increasingly narrow strand of American life.

In the past, the court had former elected officials like former Arizona state Sen. Sandra Day O’Connor, former California Gov. Earl Warren, or even former president William Howard Taft. It had justices like William O. Douglas, who blazed through key jobs in the New Deal as a young man and then served on the court for 36 years and 211 days, a record. It also had people like Justice Harry Blackmun, whose early legal career was not defined by prestigious clerkships and appellate court tenures, but by working as counsel for the Mayo Clinic in Minnesota—a background that would be unlikely to produce a nominee today.

These kind of life experiences gave these justices a feel for the concrete human dimension of public policy questions. Most Washington professionals—journalists included—approach the same questions through a prism of abstraction and emotional distance.

One result is a court that is regarded in scholarly circles for a high degree of legal craftsmanship, but fewer original thinkers. And no one who came to the Court with a commanding national reputation or deep achievement in arenas other than the law.

More capacious figures on the court might be able transcend the sullen partisanship that pervades American political culture generally. In Brown v. Board of Education in 1954, the Warren Court produced a unanimous verdict on the most divisive issue in American life. More recently, by contrast, in such 5-4 decisions as 2000’s Bush v. Gore or 2010’s Citizens United, the Court has reflected or even amplified the larger society’s divisions. (Incidentally, only one member of the Brown court had ever served previously as a federal judge. Only one member of the current court, Elena Kagan, had not previously been a federal judge.)

“We’re in a fascinating moment for the court because on the one hand the profile on the justices measured by education and professional experience is converging very much on a single model,” said Noah Feldman, a professor at Harvard Law School and the author of “Scorpions,” a book about FDR’s Supreme Court justices. “On the other hand, the viewpoints of the judges on the Court are diverging into two very differentiated poles.”

Akhil Amar, a Yale Law School professor who taught Kavanaugh and supports him based on his personal experience, nonetheless argued that there is a danger in a court with too narrow a range of experience. “Justices should be whip-smart but must also empathatically understand the lived experiences of ordinary Americans.”

Feldman said this argues for having some justices from outside the standard legal pipeline: “In a case that involves the real world, they actually know something about the real world. They’re not just abstractly speculating about it.”

This was the logic Bill Clinton was following in 1993 when he tried but ultimately fell short in persuading then-New York Gov. Mario Cuomo to accept nomination. Clinton thought a prominent elected official would inject an element of practical realism about policy issues and effective coalition-building into the Court’s deliberations. When Cuomo balked, Clinton turned to Ruth Bader Ginsburg, who had been serving on the Court of Appeals for the D.C. Circuit, a traditional conveyor belt to the Supreme Court.

While every current member of the Court has a certain conventionality to their climb up the legal ladder, that doesn’t mean they all rose from privilege. Three in particular can claim that their biographies give them special credibility in understanding what it feels like to be an outsider. Ginsburg, for instance, could not get the legendary Felix Frankfurter to consider her for a clerkship despite superb recommendations because she was a woman. Sonia Sotomayor grew up in the Bronx amid family hardship as the daughter of Puerto Rican immigrants. Clarence Thomas grew up in modest circumstances in rural Georgia, emerging with a deep conservatism that ran sharply against the liberalism of many fellow African-American legal activists.

Of course, no one’s life is without hardship, and almost everyone’s life experience is interesting to himself or herself. But the biographies of Kavanaugh and several of the justices he hopes to join on the Court convey a not-especially arduous march up the hill of American meritocracy.

Kavanaugh and Justice Neil Gorsuch, for instance, both went to the same private Jesuit school, Georgetown Prep, in suburban Washington. Gorsuch’s mother served in the Reagan Cabinet. Kavanaugh’s father was an affluent lobbyist for the cosmetics industry.

On the court, Justice Stephen Breyer and Chief Justice John Roberts come from different ideological perspectives. But both sent children to private schools—a choice no different from many parents of their economic status but yet another difference between their lives and those of many people affected by their decisions. (Alito’s children graduated from public high school in New Jersey.)

Of course, it is Kavanaugh’s purposeful and carefully navigated glide through life that gives many conservative hope that he will be confirmed—despite a narrowly divided Senate and Democrats who loathe Trump and want payback against Senate Majority Leader Mitch McConnell for blocking President Barack Obama’s final nominee to the court.

Like Gorsuch, Trump’s first nominee, Kavanaugh seems to have struck a careful balance in crafting his résumé: robust enough in his conservative credentials and previous rulings from the appellate bench to give supporters high confidence they know where he stands, careful enough that he won’t give opponents much bare skin to sink fangs into. A meritocrat par excellence.

This record promises decent chances for confirmation in a polarized environment, but relatively low prospects that Kavanaugh would join the ranks of intellectual trailblazers on the Court. “People who belong to a small, coherent elite,” said Feldman, “rarely break new ground intellectually. They’re really skilled at expanding existing frameworks.”

At a time when many are yearning for a trailblazer or two, it seems we’ll have to make do with another careerist on the court.