Why Must Read The Credentialed Court: Inside the Cloistered, Elite World of American Justice?

Benjamin H. Barton has conducted a study of the U.S. Supreme Court and concluded that it's a more elite, insular institution now than at any previous time. Although the justices are more racially and ethnically diverse than they were for nearly 200 years, Barton argues that the modern justices are drawn from a narrow academic elite. All of the modern justices attended either Harvard or Yale law schools. Barton alleges that one recent contender for the court was passed over because his law degree was from Michigan. This means the composition of the Court does not reflect the totality of America as it once did. He points out that a typical modern justice attended an elite high school, then went to an elite college, then to either Harvard or Yale for law school, then became a clerk at the Supreme Court. After that, few had any private practice of law. Barton contrasts this landscape with earlier times. He points out that George Washington, who had to build the court from scratch, appointed men who had been lawyers in private practice and were willing to do the tough work of riding circuit on horseback to conduct the business of the Supreme Court. More recently, he points to William O. Douglas, born in rural Minnesota and raised in an isolated part of Washington; and Robert H. Jackson, who rose through political activities and lacking the academic credentials that define modern justices. He notes that Lewis F. Powell, Jr., who had never served as a judge before being appointed to the Supreme Court, was the only justice in recent history to have headed a large law firm. Modern justices as a group have little in common with the majority of American lawyers, who have to represent clients, seek out work, and run their businesses. Barton argues that this means the Supreme Court is more out of touch with the American people than it once was. Indeed, there was a time when serving in elected political office was a more natural route to the Supreme Court than attending an elite law school and then working in the rarefied firms that argue appeals before the Supreme Court. He points to Hugo Black, Earl Warren, and Sandra Day O'Connor as examples of people who held elective non-judicial office before being appointed to the Supreme Court. Barton notes that this change in the composition of the Court has followed the Court's role as a policy-making body rather than a mere arbiter of judicial disputes. Barton states that the reason presidents choose to appoint those from this elite slice of the legal profession is that they don't want there to be any dispute about the nominees' qualifications for the bench when the nomination goes before the Senate. Barton argues that one way to fix this is for the justices to forego their customary three months off in the summer and instead spend this time working on actual cases in the field. I don't think there's any chance that that will happen. The book is a worthwhile contribution, as it summons to the arena the point that modern justices come from a narrow background. Presidents might decide to bring academic diversity and legal experience diversity to the nomination process, as they once considered geographic diversity and as they very much consider ethnic diversity. Barton shares much from his data set about the backgrounds of all men and women who have served on the Supreme Court. Some readers will probably prefer to skip over the data analysis and the many tables and graphs. Every modern Supreme Court nomination since the 1960s has occupied an important place in the public consciousness. This is timely as the Senate is currently considering President Biden's nomination of Ketanji Brown Jackson to replace Justice Stephen Breyer.