Wednesday, March 7, 2012
Members of the Roberts Supreme Court have spent more time as professors and judges and less time as practitioners than any previous court. They average 6 years in private practice compared to an average of 17 years for prior courts. According to Professor Benjamin Barton, the author of the study, this limited practical experience may limit their opportunities to gain practical wisdom. Here is the abstract of his article, “An Empirical Study of Supreme Court Justice Pre-Appointment Experience":
This study compares the years of experience that preceded appointment to the Supreme Court for each Justice. The study seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from the Justices of earlier Supreme Courts and to persuade the reader that this is insalubrious.
The first proposition is an empirical one and the difference in Justice backgrounds is demonstrable. To determine how the current Justices compare to their historical peers, the study gathered a massive database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The results are startling and telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court. They also spent the most time in elite undergraduate and law school settings. Time spent in these pursuits has naturally meant less time elsewhere: The Roberts Court Justices spent less time in the private practice of law, in trial judging, and as elected politicians than any previous Court. The article argues that the change is regretful for multiple normative reasons, including the way these experiences lead to legal complexity in Court decisions, the lack of litigation or trial experience on the Court, and the lack of what virtue ethics calls “practical wisdom.”