How to End the Judiciary Class War

By | 2018-02-18T06:45:38+00:00 February 16th, 2018|
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The following is an excerpt from The Judiciary’s Class War by Glenn Reynolds, just published by Encounter Books.

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In the wake of the 2016 presidential election, we heard a lot about America’s division into two mutually hostile camps: a largely coastal, urban party run by educated elites and a largely rural and suburban “flyover country” party composed of people who did not attend elite schools and who do not see themselves as dependent on those who did. This divide is more fundamental than mere partisan identification, as Democrats and Republicans belong to both groups.

One of the best formulations of this division comes from photographer Chris Arnade, who has spent years documenting the lives of America’s forgotten classes. In his characterization, America is split between the “Front-Row Kids,” who did well in school, moved into managerial or financial or political jobs, and see themselves as the natural rulers of their fellow citizens, and the “Back-Row Kids,” who placed less emphasis on school, and who resent the pretensions, and bossiness, of the Front-Row Kids.

Since the mid-20th century, the judicial branch has been the domain of judges who are not merely highly educated but educated in the particular way that law schools require. They are, in short, Front-Row Kids of the first order.

What does that mean? Well, for one thing a Supreme Court (and a judiciary in general) that is overwhelmingly dominated by viewpoints from one side of our society’s great divide is likely to be insensitive to viewpoints held by those on the other side. It may well be the case that the beliefs of the Back Row aren’t just being overridden, but rather that the justices aren’t even aware of those viewpoints at all.

A court that is unaware of, or that disregards, the values and viewpoints of half the country is very likely to rule in ways that inflame existing divisions, and perhaps even create new ones. There may be cases where that’s appropriate—as the Romans used to say, “Fiat iustitia, ruat caelum,” or “Let justice be done though the heavens fall”—but even in such cases, it would be better if the court fully appreciated what it was doing. If the courts were focused on narrow, technical legal issues, this would matter less. But the judiciary, and in particular the Supreme Court, has occupied a much greater role than that for longer than I have been alive.

Americans have been lectured to for decades about the importance of diversity, about the need for institutions that “look like America,” and so on. Yet the judiciary is one branch of the government that looks a lot more like an Ivy League faculty than like America as a whole. This has not escaped people’s attention, particularly as the Supreme Court renders decisions that reach directly into their daily lives. (And it doesn’t help that—as with Ivy League faculties—the justices’ written output is overlong, turgid, and self-referential, a far cry from the crisp, punchy, accessible output of the Marshall Court in the early 19th century.)

So what is to be done? Well, there are drastic remedies available if people think the problem is severe enough: An elected judiciary (or at least an elected Supreme Court) would give the Back Row the same power to influence the federal judiciary’s makeup as it has in the legislative and executive branches. What’s more, the need to run for election, and possibly reelection, would ensure that justices paid far more attention to the views of non-elite Back Row Americans. It’s true, of course, that the Constitution provides for no such thing, but if the problem is sufficiently serious an amendment is not out of the question. And, after all, many states do just fine with elected judiciaries.

Even without a constitutional amendment, we could resurrect colonial practice (or emulate the practice of some contemporary nations) and appoint some non-lawyer judges. The Constitution contains no requirement that federal judges and justices be attorneys; that has always been the practice, but we’re constantly hearing that established customs need to change to meet the needs of today, and perhaps what we need today is a judiciary that is less inbred. Although there has never been a non-lawyer justice on the Supreme Court, at least such a departure from history would not require a constitutional amendment.

In the short run, I would encourage presidents and senators to look at appointing—both to the Supreme Court and to the federal judiciary generally—people with experience as state judges, preferably from states where judges have to run for office. There are plenty of first-rate people who fit this description, men and women who would make fine judges, and who would be at least somewhat more sensitized to the world of the Back Row than the usual lineup of judicial thoroughbreds.

Likewise, perhaps it’s time to reach beyond Harvard, Yale, and Columbia law schools as a source. There are many fine lawyers and judges who are graduates of state law schools, or private schools outside of the Ivy League. The Supreme Court would function at least as well, I suspect, with a few graduates from places like Texas, or Kansas, or Pepperdine.

Earlier generations of justices—like earlier generations in general—contained far more military veterans. The U.S. military is probably the most diverse institution in America in very many ways, and a nominee with military experience—especially if it involved actual work with troops in the field or sailors at sea—would understand a lot about America that your average Harvard Law grad missed.

Perhaps Congress should reinstate the practice of riding circuit. For many years, Supreme Court justices filled their off months on the Court by traveling around and sitting on appellate courts in various locations. A revival of this practice would expose the justices to much more of America, especially if the justices sat as district court judges occasionally.

Aside from the election of justices, these are all suggestions that the president, and the Senate, should step back from the judicial thoroughbred template that has governed the Supreme Court and other judicial appointments for several decades and look at different types of candidates who would bring a broader social awareness to the work of judging.

Although the politics of confirmation fights are probably against me, I hope these suggestions get some attention. As our society is more and more riven by the Front Row–Back Row divide, it would be helpful to have a Supreme Court that looks more like America. Such an outcome would be better for the country, and better for the long-term legitimacy of the Court itself.

About the Author:

Glenn Reynolds
Glenn Harlan Reynolds is the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee. He blogs at InstaPundit.com and writes for such publications as The Atlantic, Forbes, Popular Mechanics, the Wall Street Journal, and USA Today. He lives in Knoxville, Tennessee.