How to End the Judiciary Class War

The following is an excerpt from The Judiciary’s Class War by Glenn Reynolds, just published by Encounter Books.

___________________________________

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 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.

Want news updates?

Sign up for our newsletter to stay up to date.

34 responses to “How to End the Judiciary Class War

  • An over-simplification, but some good points. Ivory towers are always a bad idea. They isolate those inside from the real world.

  • How about a Constitutional amendment to authorize a majority of state legislatures to override the outrageous decrees issued by the black-robed philosopher-kings (and queens) on the Supreme Court?

    • The Supreme court gave itself the power to decide what is Constitutional or not in the Marbury vs Madison decision. (sic?) That decision needs to be overturned. Simply stated the people via Congress make laws.

      Those laws are constitutional because the people say so (as long as they are not in contradiction to what is written in the Constitution. It is NOT for lawyers or judges to decide based on THEIR interpretations, it is for the people to decide. The Supreme Court is only supposed to interpret said law. Not challenge it, nor over ride it.

      We have permitted them to become dictators simply because we are too lazy to demand anything else from them.

      • So, let’s say we go with your method. Who gets to decide, and how is it decided, when cases arise about what constitutes an “unreasonable” search, or an “infringement” on the “freedom of speech,” or a “cruel and unusual” punishment?

      • It certainly should not be Judges who have implemented a Judicial dictatorship.

        Just take one of your examples “unreasonable search”. Today it is only the Judge running the trial who can distinguish a reasonable search from an unreasonable search and if you change the judge you get a different answer.

        This gives Judges way too much power. Judges get to decide who is guilty and who is innocent by controlling the evidence presented to the jury based upon skin color and political opinions of the defendant and the judge’s own personal values.

        Rather than have a guilty criminal go free, the criminal should go to jail and the policeman be fired if the police break the rules. The current approach is crazy.

      • I see that you don’t like the exclusionary rule, where evidence that was obtained improperly isn’t allowed to be presented at trial. I’m no expert, but to the degree that I have an opinion I think that I agree with you on that one. I’m sure that police unions would have an issue with the consequences that you propose, but that’s another question.

        But back to my original question – who, in your view, gets to decide when a search is unreasonable and, therefore, a police officer should be fired? More broadly, how do you propose that trials be conducted – who gets to determine what evidence gets presented and what evidence doesn’t? I’m assuming that you don’t think that there should be no limits – otherwise, defendants with money can just keep the trial going by paying their lawyers to keep calling witnesses to the stand and having them talk about nonsense.

        I don’t understand why you think that judges are controlling evidence “based upon skin color and political opinions of the defendant.” Would you be willing to elaborate a little on that?

      • The Legislature should make the law about what should be admitted or not admitted. Judges should follow the law. A good rule could be that the Prosecution and the defense have the same amount of time to make their case and the time would be agreed to by Prosec and defense with the Judge making a decision if they couldn’t agree. The more serious the case, the longer the period but never more than 2 weeks total. This is just a suggestion, not something I would fight for if given a better alternative except for the Legislature making the rules. The idea that the jury should not be shown evidence because it would be prejudicial to the defendant is ridiculous. Let both sides put on their best case and let the jury decide, not the Judge.

        There is no rule of law in the US. There is a rule of Judges because there are so many laws and precedents that Judges select whatever allows them to rule in favor of the party they want to win.

        Racism is baked into the law with protected minorities and disparate impact. What one person can get away with, another person is convicted.

        Look at the sexist views of the courts related to divorce. Women initiate divorces 2/3 of the time, they are awarded custody of the children with the husband required to pay child support almost all the time. Why not a presumption that it will be joint custody with no child support unless a case can be made that relies upon more than the woman’s testimony. Why are we not all equal under the law.

        Do you really think Judges don’t make their decisions based upon politics for cases with political repercussions? How about Roberts and the Obamacare case? Congress is supposed to be limited under the Constitution with regards to their legislative authority.

      • I’ll respond to each of your paragraphs:
        1. If you think about it a little more I hope you’ll see that your proposal can’t work. Just one example, do you think that a criminal defendant should be able to introduce evidence that the victim was a bad person in some irrelevant situation, in the hope that the jury will decide that the victim “had it coming”?
        2. The “rule of judges” is, to quote our Attorney General, part of our Anglo-American legal heritage. Certainly you’re correct that judges can mis-apply the law or shade the facts – that’s why there are appeals courts.
        3. I’d like to understand some specifics about what you’re saying regarding “protected minorities and disparate impact.” For example, if you think that Blacks are disproportionately favored by our criminal-justice system, I’d like you to explain the disproportionately large fraction of Blacks who are in our prisons.
        4. I don’t know enough about divorce laws to have an informed opinion, but it wouldn’t surprise me that the current law is more favorable to the woman, perhaps as a vestige of our pre-equal-rights society from 50+ years ago. If that’s the case, I agree that it should be changed.
        5. Of course I don’t think that judges are able to completely separate their personal and political beliefs from their decisions. They’re human. I think that they should try their best to do so, and I think that most of them think that they’re trying to do so. Your statement about Congress’s authority under the Constitution is correct, as a general principle, but the devil is in the details so it’s not really helpful to make such a blanket statement.

      • 1. Yes
        2. It is not a mis application of the law. It is a usurpation of legislative power.
        3. A disproportionate number of blacks are in jail, because they commit a disproportionate number of the crimes.
        4. Good
        5. When Judges believe that it is their duty to resolve social issues that the Legislature is unable to deal with, we have a Judicial dictatorship.

      • Regarding #5, again the specific fact situations matter, so your general statement isn’t really illuminating. It can mean anything from prayer in schools to gay marriage to whether Blacks can go to the same schools as whites. Which of those do you think was illegitimate?
        And when judges are appointed by elected representatives, and can be impeached by those same representatives, don’t you think it’s a bit of an overstatement that we’re in a judicial dictatorship?

      • “It can mean anything from prayer in schools to gay marriage to whether Blacks can go to the same schools as whites. Which of those do you think was illegitimate?”

        School prayer and gay marriage are illegitimate. The effect of the judiciary upon the K12 schools has been disastrous.
        Desegregation is more difficult. An argument could be made based upon 14th Amendment. It is very debatable whether the effect of the Judiciary upon race relations has been beneficial.

        Federal Judges are appointed for life. It requires 67 votes in the Senate to impeach them. When was the last time that any party had 67 votes in the Senate.

        Better to have Judges with a 10 year term with automatic renewal for one additional 10 year term provided they are not blocked by a majority vote in the House or Senate. It would also be useful to allow State Legislatures to remove Federal Judges since the Supreme Court has proved to be complicit in the unbridled expansion of Federal power beyond anything contemplated in the Constitution.

      • nor to “make law” via their OPINIONS. As in the old saying, opinions are like rectums. Everyone has one. The rectums on the bench of SCOTUS should carry no more weight than that of my drunken neighbor, who nonetheless often makes more sense than the 9th Circuit, or half of SCOTUS.
        Judges at any level are our EMPLOYEES. Not our masters.

        I would be fine with a rule that only 45% of all federal judges could be lawyers. Time to abolish that monopoly. And TERM LIMITS. Short ones, not renewable.

  • Several of the suggestions are fine, but the “reasons” given (“front-row” vs. “back row”) is a thinly disguised cover for the politics of resentment that Reynolds pushes relentlessly at his blog site.
    It’s interesting that Reynolds gives no examples, at least in this article, of what he’s talking about. Are gun rights an example? Because it was the 21st-century Supreme Court that articulated a personal right to own guns, so that doesn’t support his argument.
    I’m speculating that what he’s talking about are decisions that require recognition of same-sex marriage, or that prohibit discrimination on the basis of sexual orientation. If he wants those reversed, why doesn’t he just say so instead of pushing the idea of an artificial divide between “elites” and the rest of us.

    • Hate to have to tell you this, but the Bill of Rights list Individual rights. I have heard the self anointed try to say the second was a collective right but step by step we get a list of the rights of individuals. Amendment 9 is the first collective right and it was an affirmation that there are other individual rights as well. The 10th also makes the statement that the government does not have a wide range of rights over the states or the individual.

      • You don’t need to feel bad about telling me that, because it’s completely beside the point I was making. I don’t have an opinion on whether the 2nd Amendment case was correctly decided, and I certainly didn’t express an opinion in my comment. I was just pointing out that Reynolds gives no specifics about how “elites” supposedly come to different conclusions than non-elites, and I noted that it was the allegedly elitist Supreme Court that, for the first time in our history, made such a holding regarding the Second Amendment.

      • “a thinly disguised cover for the politics of resentment” pretty much shows the direction of your own bias. Rather than to reinforce our own opinions even more we need to figure out how to address the problems of those who despite their levels of education can plainly see we are no longer a nation of laws. A law for the “people” and another law for people who consider themselves as important is not the rule of law.

      • No reasonable person could disagree with your last sentence, and I sure don’t. But I’m wondering what, specifically, you mean, and when you think we were more a “nation of laws” than we’ve been recently.

      • The law has always been different for those who are ‘connected.’ Maybe the greatest step towards the Law for everyone may have been when the plebes forced the patricians to write the law down. Maybe the constitution was the bigger step but for a time, for quite a time it was kept mostly undercover. That is no longer the case. It has gotten more and more blatant as we approach the present. Example? There both is/and was nothing about secure documents involving “intent.” An example in front of everyone that the same thing that have caused others going to prison was dismissed because Hillary did not mean to break the law. No intent. Show me the word intent in that law, I challenge you.

      • I can’t show you that word, but I can point you to the fact that Gen. Flynn wasn’t prosecuted for sharing classified information because he didn’t do so knowingly. The law wasn’t applied to Clinton any differently than to Flynn.
        Second, I’d be interested to know whether you were outraged at Reagan in the Iran-Contra scandal, or whether your concern for the law is applied in a bipartisan manner.

      • There is a slice of me that leans one way, the exception that proves the rule. The fact that it is much more common on the leftist side is no excuse. I do notice the enormous difference between leftists and liberals. I was a liberal for a long time and by the original meanings of the word I still am. Leftism however is a stench in my nostrils.

        The law needs to be the law. It is not left or right but just. Liberals were interested in justice to a greater extent before they were beat down by the hard left.

        True justice is a realism of what works. In the world we live in an example is gun control. The idea of gun control sells well because it sounds as if it should work. It does not work however and trying to prove that gun control works is one of the larger factors in more americans owning weapons. Armed societies are both more law abiding and polite. I do not want all americans to own guns for two major reasons, outside of those two I want whites, blacks, gays, immigrants and all to have the right to own firearms.

      • I’m going to call it a day, so thanks for the dialog. I’ll leave you with 2 points where I disagree with you.
        First, regarding leftists and liberals and whether left or right is “worse” – I’m not going to try to defend every stupid overreaching and overreacting statement of action by everyone left of center, but what I see over the past 20 years is the Democratic Party that is center-left (but getting more liberal) and is interested in governing, and the Republican Party that has been taken over by reactionary/revolutionaries, who have no interest in compromise or governing, and who are almost completely driven by the right-wing media outrage machine.
        Second, regarding whether gun laws work, I’ll only point out that the Firearms Act of 1934 made it illegal to have machine guns, and unsurprisingly there are few instances of machine guns being used to commit mass shootings. In short, I think that “gun control” can’t work only because the NRA has completely captured the conversation, but if we outlawed guns like the AR-15 we’d see fewer deaths in these mass shootings.

      • You are lying to yourself. Switzerland does not have a lot of violent crime.

        East Germany was so hostile to individuals owning firearms as to warm the cockles of any leftists heart.

        Despite what would seem as an idea that would work it most simply does not. In any form or fashion outside of a concept.

        The areas when people are armed have less violent crime. That is because criminals are more intelligent than the hard left. With their own lives at stake criminals do not start violence in places where people are likely to be armed. Period.

        https://uploads.disquscdn.com/images/60686d49fcd363aa78cef23e7830e396e0383c157364346ba5b685c7de6caf12.jpg

        https://uploads.disquscdn.com/images/cea5238bdd553e3572d27106a7f3462bfeda8a35d896a27fef17d7ea367d1347.jpg

  • “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.”

    Well, didn’t someone (The Big Zerobama) already try that.

    No, what you want to say is this: ” It would be helpful to have a Court that THINKS more like America”

    We don;t need any more “wise latinas”, “sleepy little dwarfs”, etc on the Court.

  • Is anyone shocked that the Supreme Court is filled with people who were not high school dropouts or folks who chose vocational training rather than college? The real issue is that two related forces, judicial activism and left wing politics that loves to use the court to refashion society has taken charge.

    The legislative branch, and I mean both parties, have been eager to turn their backs to their responsibility to make the law. They have abdicated that responsibility to nameless and faceless bureaucrats who will never stand for election and to activist lefty judges who are more than happy to fill the void. It’s as if those in congress don’t want to attach their names to anything that they might be held responsible for. Much of the contempt and disgust with the status quo comes from millions of people aware of the fact that they or their opinions are hardly part of the equation any more. Attaching those who lead somehow to the needs and interest of those of us who are led is a worthwhile effort.

  • “All federal judicial offices shall be elective on such terms and conditions as Congress may allow. The President may fill vacancies for unexpired terms by appointment on such terms as Congress may allow.”

  • The divide is not front row -back row, though that is a divide also. I’m very much a front row kid — but never a popular kid. The actual divide is that which is addressed by CP Snow in _The Two Cultures_; between those who are ruled by feelings and heuristics and (generally self-selected) “ideals”and those who may recognize what is. Look at the difference between Ms. Justice Ginsberg and the late Mr. Justice Scalia for perhaps the greatest contrast.

  • An elected judiciary (or at least an elected Supreme Court) would give the Back Row the same power to influence

    Well, it certainly would give the self-interested public employee unions far more than the same power to influence decisions affecting us all than they now enjoy under presidential appointments.

    In the state of Washington said unions have bought themselves nearly an entire Supreme Court of statist, progressive and anticonservative Justices, as the recent usurpation of the elected Legislature’s job in the McCleary decision demonstrates. Taxes are skyrocketing due to their massive bonanza to the teachers unions who got them elected, wholly due to the argument that the Legislature must fund education ‘sufficiently’ – not according to our elected representatives, but according to the refined tastes and campaign paybacks of our ‘Justices’.

    That aint no Back Row action, no way.

  • This proposal makes a lot of sense.
    But it won’t cure the problem of an over-mighty liberal activist judiciary.
    A simpler solution would be to fight fire with fire….appoint judges who will overrule these activist judges.

    • Ever consider that a single step will not cure the problem? I know of no single step that will work. Appointing judges? A game going back and forth already. Constitutional amendment for a balanced budget? Another law that will be used to weasel around rather than to heed as it is written. Indeed I doubt that the problem even can be solved for mortal humans. The proposal Glen put forth is not a stand alone solution but one of a series of things that concerned people can deal with. I do not feel he is so foolish as to assume that he knows how to fix the problem, he but sees a piece we can use with other tools to work with and address possible solutions.

  • IMHO, Justice Scalia said it best in his Obergefell dissent. He noted a pack of 9 lawyers who all came from three Ivy League law schools after (with one exception) growing up in either Catholic or Jewish families residing in elite coastal enclaves told a Protestant leaning majority population there would be gay marriage and they would like it all while they were coming around to the concept anyhow.

  • Reynolds is a good man, but completely misses the point.
    One side wants the judiciary to implement the rule of law.
    The other side wants the judiciary to implement the rule of politics.
    Reynolds hopes to implement the rule of law, but in doing so he will antagonize the rule of politics half.
    There is no reconciliation.
    It’s over. Worse than 1860.

  • I disagree with “…a largely coastal, urban party run by educated elites…”. The comment assumes that attendance at an ‘elite (read expensive and highly social) school’ constitutes an education. Having attended a fairly reputable school, Ga Tech, and having rubbed elbows with those self same educated elites for over 45 years, I attest that as a group they are far less educated, less able to do do any more than spout liberal platitudes and certainly never ever think critically than red state educated and trained people who get ahead on performance rather than social connections.
    You will rarely find a third generation trust fund elite who can wipe their own…

  • If there is ever a counter-revolution in this country, you can bet that 90% of the lawyers will be strung up.

  • Why not cut to the chase and say the rule of law is dead? Maintaining the pretense only serve to entrap is in various tryannical schemes. What matters are the opinions of judicial nominees is the new truth. The written laws are a buffet from which to choose in order to get the desired outcome.

Comments are closed.