Consider the historical and current make-up of the Court.
“The Bubble” and the Judiciary: Is There a Solution?
The 2016 election focused attention on the cultural, social, and economic divide that separates the highly-educated coastal elites from struggling working and middle-class voters in neglected “fly-over country.” The nation has become increasingly stratified, in a variety of ways, threatening to rend our shared civic fabric. Pundits have coined a term for this phenomenon— “the bubble”—and cited it as an explanation for dysfunction in higher education, imbalance in the media, and polarization in American politics. The Judiciary’s Class War, a thin but highly-readable volume written by University of Tennessee law professor Glenn Reynolds (of Instapundit fame), posits that the bubble also affects judicial decision-making, especially by the federal courts.
Reynolds’ timely and perceptive essay points out what often goes unnoticed: The justices currently serving on the U.S. Supreme Court all graduated from Ivy League law schools (eight of nine from either Harvard or Yale), and include no military veterans, former politicians, or judges with state court experience. The current justices overwhelmingly hail from—or have professional roots in—the Northeast-D.C. corridor (Neil Gorsuch alone came to the court from somewhere other than one of the coasts), and conspicuously lack significant private sector legal experience. Most justices were academics or lower court judges prior to their appointment, and those who did practice as lawyers tended to work for the federal government or as appellate lawyers—hardly representative of the bar as a whole. John Roberts’ specialty at Hogan & Hartson was arguing cases before the Supreme Court.
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As Reynolds explains, the over-arching problem is that
since the mid-twentieth century, the federal courts have become, in essence, our nation’s moral umpire when it comes to the pressing social questions of the day. This use of the courts itself reflects a Front Row approach, removing decisions from the masses and placing them in the hands of educated elites…. A muscular, unelected Supreme Court enforcing a “living Constitution” that conveniently reflects the prejudices of the elites, without concern for the vagaries of elections and popular sentiment, represents a particularly intrusive form of elitism.
Reynolds has eloquently framed the problem, and begun a dialogue regarding the solution. It is a long-overdue conversation that our republic dearly needs to have.
A quick (48 pages), exciting read:
The Judiciary's Class War
The terms “Front-Row Kids” and “Back-Row Kids,” coined by the photographer Chris Arnade, describe the divide between the educated upper middle class, who are staying ahead in today’s economy, and the less educated working class, who are doing poorly. The differences in education—and the values associated with elite schooling—have produced a divide in America that is on a par with that of race.
The judiciary, requiring a postgraduate degree, is the one branch of government that is reserved for the Front-Row Kids. Correspondingly, since the Warren era, the Supreme Court has basically served as an engine for vindicating Front-Row preferences, from allowing birth control and abortion, to marginalizing religion in the public space, to legislative apportionment and libel law, and beyond. Professor Glenn Reynolds describes this problem in detail and offers some suggestions for making things better.
Do we really think what we have now is what was conceived of at Philly in '87?
