On Sunday, the Washington Post looked at the life experience of the current Supreme Court justices. It examines a paper written by Professor Benjamin Barton called “An Empirical Study of Supreme Court Justice Pre-Appointment Experience” that reveals just how narrow the pre-Court life experiences of justices of the Roberts Court have been.
From the establishment of the Court through the tenure of Justice Sandra Day O’Connor, there had always been at least one justice on the Supreme Court who held elective office. Since the confirmation of Justice Samuel Alito, however, nobody on the Supreme Court has ever won an election. This is perhaps the most striking finding of Barton’s study, though there are others. On the current Court, no justice was ever a state court judge, and only Justice Sonia Sotomayor was a trial judge.
Justices on the current Court are much more likely to have private practice experience in the largest law firms, which tend to have large corporations as clients, and much less likely to have private practice experience with small or solo practice firms. In fact, only two justices have never had private practice experience, and they both sit on the Court today (Justices Stephen Breyer and Samuel Alito).
The Supreme Court is in danger of becoming unrepresentative of America as a whole, and even of the legal profession. Justices who have spent time in the biggest law firms defending corporate clients, and who have resided for longer and longer inside the insular legal environment of Washington, DC, bring their own valuable experiences to the Court’s chambers. However, when these experiences are the only ones represented by justices of the Supreme Court, perspective and insight about the law as it is applied to a wide variety of people and situations may be missing.
Happily, the Supreme Court has more gender and ethnic diversity than ever before. The historical trend of opening up the political space to more and more Americans has reached to this most elite of institutions. One of the only two African American justices in history sits on the current Court. The first Hispanic-American justice was seated only a few years ago. Three of the four female justices in history are hearing cases, making a Court where one-third of the justices are women.
Ensuring gender and ethnic diversity on the federal bench allows the judiciary to draw upon the breadth of American experience and history in rendering equal justice under law. But it is just as important that we do not lose sight of the importance of having a diversity of professional backgrounds as well.
We should make sure that the Supreme Court has an understanding of, for example, the difficulties facing public defenders and their clients, the realities of practicing in all sizes of law firms with all types of cases, the knowledge of the legal system that comes only from extensive experience with trial practice, the importance of public interest firms in ensuring the rights of everyday Americans, and the way that the decisions and logic of the Court can affect Americans outside the Beltway.
Alliance for Justice recently published an extensive report on President Obama’s progress on judicial nominations through his first three years. We found that President Obama has a stellar record of appointing women and minorities to the bench, but that he has appointed more prosecutors and attorneys from large law firms than public defenders or public interest attorneys. In our Judicial Selection Snapshot, we provide up-to-date information about all federal judicial nominees, including information on the nominees’ professional backgrounds.
Professor Barton has shed light on the historical anomaly that is the current Roberts Court, and has made a powerful argument on why this lack of diversity in the marbled cloister of the Supreme Court merits the attention of all Americans who care about ensuring that the Supreme Court provides equal justice for everyone. Alliance for Justice will continue to fight to make sure that all levels of the federal judiciary are filled by judges with diverse life experiences prior to joining the bench.