I want to share with you a letter from fellow TPM Reader DA. He makes a point I fully agree with but didn’t make clear enough in yesterday’s post. I fully agree there is such a thing as legal expertise. I’ve made that clear in my actions over a couple decades by paying for some of the very best (and priciest) legal counsel — mostly though not exclusively on 1st Amendment and libel law. It of course goes beyond this. Law, in its largest scope, is a complex set of rules and practices that we as a society have agreed on — sometimes explicitly, usually implicitly — to govern ourselves by and through which we resolve the countless range of disputes — civil and criminal — that arise among us. But it is in the nature of any specialized and professionalized craft to cast a penumbra of authority beyond its actual area of expertise.
We saw an analog to this during the COVID pandemic in the controversy and debate over lockdowns. In such a public health crisis you want to listen very closely to public health specialists, virologists and epidemiologists about how the disease works, the risks and benefits of different public health responses: lockdowns, treatments, vaccines. But the key questions about acceptable levels of risk, the balance between health risk and sustaining normal society activity, etc … these are properly political questions or public questions. This distinction was mostly obscured in 2020 and 2021 because the anti-lockdown furor was mostly, though not solely, fueled by conspiracy theorists and quacks. But it is nonetheless true that “the science” itself doesn’t prescribe the governmental response. It sheds as much light as possible on the reality of the situation, the risks and benefits of certain actions. It’s up to elected officials and public deliberation to decide how to act on that information. There’s an analog here to the law, though the nature of medical science and legal knowledge are categorically different.
What we have in major parts of the legal academy — and what I’ve called the elite academic-judicial nexus — is a quite successful effort to colonize a major part of the apparatus of democratic self-government through a kind of mystification about the nature of legal knowledge. This was brought home for many of us back in 2020 when Harvard Law professor Noah Feldman, who is generally classed as a liberal, endorsed the nomination of Amy Coney Barrett, calling her “brilliant” and “conscientious” and insisting she “deserves to be on the Supreme Court.” Beyond the clubbiness of this intervention, there’s a premise: that because of a kind of extreme intellectual athleticism and the highly dubious claim that she would judge cases in good faith based on her set of beliefs that she’s entitled to a seat on the Court. The premise here is that because of the esoteric nature of legal knowledge — really appellate legal knowledge — that the decision of whether or not she should be on the Court is kind of above our pay grade as the public.
That is, in a word, bullshit. And it is a profound indictment of the elite legal academy that someone like Feldman (and here I don’t mean to mean to pick on him but merely use him as a stand-in for a whole class of elite legal opinion) is either incapable of or unwilling to see and identify that corruption. You don’t need to have a kick-ass LSAT score or clerkship to know that you don’t want Amy Coney Barrett on the Supreme Court. There’s no esoteric lawyer knowledge you need to know that to know that U.S. presidents are not above the law and that the U.S. Constitution absolutely does not grant immunity to presidents. There is zero legitimacy, zero right for these people — with a rather obscure and debatable form of academic knowledge — to create one.
There’s an additional point here that DA makes. There’s a huge amount of knowledge and experience that goes into being a good judge. But another bad trend in the evolution of the Court is that fewer and fewer justices have ever been trial judges. (I believe Justice Sotomayor is the only current member of the Court who has ever been one.) Being a trial judge puts a person in direct contact with the realities of actual life. And as Oliver Wendell Holmes put it, “The life of the law has not been logic; it has been experience.”
These are all problems with the elite academy generally. It helped bring us to this point. But the Court over the last 10 to 15 years is in a different category. Because of a culture of impunity, they went from being an activist right-wing Court to one mired in a sink pit of anti-constitutional corruption. They decided to run the country from the bench. There’s no special knowledge you need to know that has happened and that it is unacceptable.
Now, TPM Reader DA …
As a career prosecutor, I have a slightly different, although ultimately complementary, view on this question. We should not make a law professor or judge our expert on Supreme Court reform, but that isn’t because there is no such thing as legal expertise, but rather because reform is a political question where knowing case law and reasoning just doesn’t help. I just don’t see what they would have to add and I am not overly interested in their opinion. However, I do think there is such a thing as legal expertise, and anyone who practices regularly in court will tell you that a good judge is one who can read and understand the cases deeply and with nuance and can tell you how bad it is if you get a judge without those skills. For example, complex hearsay or due process questions just aren’t amenable to common sense alone. By contrast, given that most elite law professors/judges are overly enamored with the idea of the prestige of the Supreme Court, I just don’t trust them to make the necessary and cutting political reforms. (Which lets face it, is probably as easy as adding four new justices.)
The issue, as your have pointed out, is that our current republican supreme court justices are corrupt, and they have abandoned any pretense of legal reasoning or judicial character and replaced it with a hardcore reactionary politics that they then doll up with legal verbiage. It is not dissimilar to what RFK has done with public health. This doesn’t mean that legal doctrine (or medical research) is just a matter of common sense without the need of study and knowledge, but just as a grifting health influencer is not really practicing science, a corrupt political court is not really practicing the law.