The Crisis of the Credentialed Court

A cramped understanding of “qualifications” blinds us to the weaknesses of a Supreme Court suffering from uniformity.

By Nathan Pippenger

As the White House is sure to repeat again and again in the coming weeks, Merrick Garland is eminently qualified to serve on the Supreme Court. The administration’s focus on Garland’s résumé is probably designed with hopes of peeling away a few Republicans from the Senate’s obstructionist bloc, or (failing that) to inflict maximum political pain in defeat—punishing the GOP for rejecting someone so brilliant, so accomplished, and so obviously designed as a consensus choice. This makes sense as a political strategy, but as Ian Millhiser notes in a perceptive critique, it has the unhappy side effect of reinforcing a badly cramped conception of what a good justice looks like. Yes, Garland excelled on the traditional path which begins at top law schools and feeds students into elite firms and clerkships—a path determined by “careful calculations,” Millhiser notes, “that ambitious young men and women make before they turn 24.” Still, he asks: “What does it say about the court and the law that our notion of who is unimpeachably qualified is so narrow — and growing even narrower still?”

Millhiser’s question is useful not only for clarifying the logic of this nomination, but for modifying one of the sillier popular ideas of the Court and exposing some of its most serious shortcomings. Yes, Garland’s education and career suggest that he would be a very able justice. But the same is true of Paul Watford, Sri Srinivasan, and every other choice considered by the administration. There was never a threat of a Harriet Miers-style nomination here. And once that threshold of qualification has been met, other considerations should take over. To put it simply, the Supreme Court is not an academic distinction to be awarded to the student with the highest GPA; it’s in part a political position for which other considerations are entirely appropriate.

For that reason, the “narrow” idea of qualification has serious limitations. Even if you make the dubious assumption that law school ranking and career trajectories serve as reliable proxies for a nominee’s intelligence, there’s no real reason to think that simply having more brainpower, past a certain point, is going to produce a better justice—unless the best justices are simply the smartest judges.

That might be plausible if the Supremes’ docket were nothing but a series of logical puzzles that had stumped the lower courts. But the distinctive feature of most of the Court’s big cases is precisely their lack of a clear, uncontroversial answer. Dividing lines over the Court’s most famous interpretive and ethical disputes are determined more by contending ideologies and divergent values than by differences in I.Q. So it can’t be the case that “qualifications” are all that matter, something that becomes obvious when you see the Court up close—since its recent composition functions pretty well as a rough test of the “narrow qualifications” theory. (As critics like to note, every single current justice attended either Harvard or Yale.) And while their legal acumen is pretty much undisputed, brilliance in that realm can’t make up for other shortcomings.

Elite legal training didn’t, for instance, stop Anthony Kennedy from making this infamous declaration in Citizens United: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” The stature of the Court—its popular perception as a tribunal of sages—may have even encouraged Kennedy’s belief in his power to definitively settle the question not only of whether such expenditures did lead to corruption, but even whether they appeared to. Perhaps his confidence might have been tempered by the presence of a former politician among his colleagues—but the last major politician to sit on the Court was Earl Warren, who was nominated over sixty years ago.

Nor did legal sagacity save Antonin Scalia from lapsing into far-fetched alternate histories when a decision didn’t go his way. When the Court struck down parts of Arizona’s controversial S.B. 1070 immigration law in 2012, Scalia claimed that the delegates to the 1787 Constitutional Convention would not “conceivably have entered into the Union if the Constitution itself contained the Court’s holding.” And this was the justice famed for his attention to history. Things were even worse when Scalia strayed further from his putative areas of expertise: He seemed genuinely unaware of Congressional gridlock (on the issue of Obamacare, no less!) during oral arguments last year and was recently shocked to hear that the federal government takes diplomatic considerations into account when designing immigration policy. It’s not that justices need to be experts on Congress or foreign policy, but neither does an elite legal education and career make up for gaps in those areas. It’s even less helpful in resolving fundamental differences in life experience, of the sort which caused Ruth Bader Ginsburg to lament her (then) all-male colleagues’ questions after oral arguments in a 2009 case concerning the strip search of a 13-year-old girl by middle school administrators. “They have never been a 13-year-old girl,” Ginsburg said at the time. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

Shortcomings like these are caused not only by a lack of non-legal experience, but by a corresponding overestimation of what an elite legal career is capable of providing. The tendency to evaluate nominees by its narrow standards is partly due to the relative ease of judging those standards: It would be a difficult (and endlessly-disputed) standard that could capture these more nebulous forms of qualification. But the current obsession with what Millhiser calls “elite credentials,” narrowly defined, isn’t just promoting a dubious vision of what a “good” justice looks like. It may, ironically, be contributing to the characteristic flaws of the highly-credentialed Court we actually have.

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

Also by this author

The Lure of Antipolitics

Click to

View Comments

blog comments powered by Disqus