If you’re not a regular listener to our podcast, I hope you’ll listen to the episode that will come out later this afternoon. It was, I think, a particularly good episode, in large part because we had such critical issues to discuss: Callais, the wave of emergency redistrictings across the southern tier of the old Confederacy and what seems to be a sea-change moment on Supreme Court reform among establishment Democrats. I want to expand today on some points about Supreme Court reform, offering some of the historical background for this present moment.

Every current member of the Supreme Court comes out of what we might call the elite academic-judicial nexus, which is to say they’ve been law professors at elite universities and judges in the federal judiciary. I believe this applies to all the current justices. It didn’t used to be this way. It used to be relatively common to have justices who had never served as judges before and had never been law professors. Frequently they were ex-politicians. Famously, William Howard Taft was an ex-president when he became chief justice. Earl Warren was a popular Republican governor of California who had never served as a judge until president Eisenhower nominated him as chief justice. If you go further back, many justices never even went to law school, though this was more a matter of the evolution of legal education. The last non-law school justice was James F. Byrnes. (In earlier history, you generally learned the law as a kind of apprentice and then passed the bar to practice.) There was a brief boomlet of chatter when Bill Clinton was elected that he should or would try to re-inject this “politician on the Court” tradition back into the system. Of course that didn’t happen. The idea has scarcely been entertained since.

From an Anonymous TPM Reader …

Apologies for the extremely lengthy response, but your post today hit upon a perennial hobby horse of mine!

It strikes me that in addition to their own self-image, law professors (and elite lawyers generally) aren’t able to be honest brokers in discussions about court reform because of the enormous quid pro quo and tight knit social ties created by judicial clerkships.  The number of students that obtain clerkships plays a big role in law school rankings. Partly as a result of this, having clerked at least for a circuit clerk is now seen as a de facto requirement to be hired as a law professor, barring a PhD in another field (and even then, most still clerk).  Professors who clerk help place students with their judges and so on and so forth.  There is an *enormous* professional taboo against quitting a clerkship or criticizing the judge that you worked for no matter how bad the experience.  It’s viewed as professional suicide, some law schools will effectively ice you out of their career services as you do it, and certain firms will effectively be closed to you for the entirety of your career.  Conversely, stay close with your judge and you can expect them to be a letter of rec and introduction-maker for life. All of this adds up to elite law school faculty and elite lawyers having a sizeable material professional and social stake in revering judges, in addition to their psychological investment in feeling learned.

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.