The Volokh Conspiracy - Do Judges Make Better Justices?

In a recent speech, Chief Justice Roberts suggested that having more former appellate judges on the Supreme Court makes the Court's decisions less political. The NYT reports:

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts's predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.

As a consequence, Chief Justice Roberts said, "the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science."

Since then, Chief Justice Roberts continued, "the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?"

That move, he said, has resulted in "a more legal perspective and less of a policy perspective."

I understand why the Chief Justice might think this way, but I am skeptical. There does not appear for there to be much empirical support for his claim, and reasons to believe that a Court made up exclusively of former appellate judges might have other deficiencies.

If Chief Justice Roberts was implying that the court became less political as the number of former judges on it rose, said Lee Epstein, who teaches law and political science at Northwestern and is one of the authors of the study, "the data don't support it."

And not everyone supports the idea that members of the court should have uniform backgrounds. The psychological literature demonstrates that "the more homogenous the group, the worse the quality of the decisions they make," said Tracey E. George, a law professor at Vanderbilt and the author of a law review article about the consequences of promoting former judges to the Supreme Court.

I am not eager to see a former politician on the High Court, but I believe it would be valuable to have justices with greater trial court and non-judicial experience.

	[Jonathan Adler, February 16, 2009 at 10:13pm] Trackbacks Do Judges Make Better Justices? In a recent speech, Chief Justice Roberts suggested that having more former appellate judges on the Supreme Court makes the Court's decisions less political. The NYT reports: Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law. As late as 1972, when Chief Justice Roberts's predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority. As a consequence, Chief Justice Roberts said, "the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science." Since then, Chief Justice Roberts continued, "the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?" That move, he said, has resulted in "a more legal perspective and less of a policy perspective." I understand why the Chief Justice might think this way, but I am skeptical. There does not appear for there to be much empirical support for his claim, and reasons to believe that a Court made up exclusively of former appellate judges might have other deficiencies. If Chief Justice Roberts was implying that the court became less political as the number of former judges on it rose, said Lee Epstein, who teaches law and political science at Northwestern and is one of the authors of the study, "the data don't support it." And not everyone supports the idea that members of the court should have uniform backgrounds. The psychological literature demonstrates that "the more homogenous the group, the worse the quality of the decisions they make," said Tracey E. George, a law professor at Vanderbilt and the author of a law review article about the consequences of promoting former judges to the Supreme Court. I am not eager to see a former politician on the High Court, but I believe it would be valuable to have justices with greater trial court and non-judicial experience.