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.
We are so far gone into the cesspit of judicial corruption that nominating ex-politicians is not a solution to any current problem, though it would be much better if we got back to some version of it. I mention it to note that we now live in a world in which it is taking as a given that justices must come from the world of rarefied, highly theoretical knowledge that is taught in law schools, especially the half dozen or so elite law schools from which most justices come. This is a very new concept and it is part of a history of professionalization which laid the groundwork for today.
Professionalization was a key part of the history of the latter 19th century. In the early 19th century, whether you were a lawyer or a doctor or other position we now recognize as a profession was largely a matter of saying that’s what you were. Over the course of the 19th century there was a process of creating formalized degree programs and academic training as well as systems of accreditation, often allied with binding state authority. In medicine, this overlapped with a growing body of scientific knowledge about the human body and ways of treating it. (I will focus on some of the downsides of the professionalization movement. But obviously it’s a good thing to know that the person who calls themselves a doctor actually has all the knowledge and training they’re supposed to have.) In the legal domain, professionalization also changed the nature of the law, juries and criminal justice.
Today we have a pretty tight division in trial courts over facts and law. The judge decides what the law is, in concert with the lawyer advocates. Juries determine questions of fact. In the pre-professionalization world, that division was far, far murkier. Juries could mostly do what they wanted (as indeed, they mostly still can.) A key element of the movement of professionalization was to make the role of juries increasingly narrowed and controlled. This is where you get the idea of “jury nullification” which is essentially a word for a rogue jury that has exceeded its remit and galloped ahead to deciding facts, law and just what should happen. This is a loophole the movement of legal professionalization was never quite able to close. Judges tell juries they can’t “nullify.” But in fact they can. And we’ve seen over the last year and a half how critical a redoubt against tyranny this can be, as juries have simply refused to indict or convict people for supposed anti-ICE crimes.
This is a complex history, with upsides and downsides. There are many features of legal professionalization we wouldn’t want to lose today. The key point for present purposes is that professionalization created the idea that statutes and indeed the U.S. Constitution was something people needed highly specialized training to understand. This is mostly false. But it has furthered a worldview in which judges must be deferred to, even when they make decisions which are transparently partisan, corrupt, self-interested or dishonest. When you want to know about rocketry or nuclear weapons or radiation, you really want to talk to a physicist. They have real foundational knowledge that you have to study for a long time to understand. The law isn’t like that. Constitutions are written, or should be written, so the average intelligent person can understand them. The same should go for laws. Mostly that is the case.
In the exchange that I noted yesterday with TPM Reader MS, he said I should debate a Supreme Court expert from a prominent law school to air the issues tied to Supreme Court reform. I told him that law professor experts are, as often as not, part of the problem more than a source of helpful information. I should say that I know a lot of great law professors who are very knowledgeable and educate people about important things — some of them are TPM readers and sources for our reporters. But as a profession, the legal academy is still heavily invested in the idea that they are part of a highly specialized area of knowledge which is required to understand the Constitution and know how the law should operate. At its worst, they see it as half akin to a body of knowledge like physics or genetics. It’s simply not. The Roberts’ Court has brought to the surface the ways in which all the fascinating debates, all the arcane knowledge that maybe you debated with those Federalist Society nerds in law school is simply a convenient packaging for political power. And now when the Court’s corruption has grown so extreme they barely even bother with the packaging.
If you’ve dedicated your professional life to the proposition that this base of theoretical and technical knowledge is “real,” it’s a very bitter pill to swallow to see it revealed as no more than packaging for power. This applies to members of the elite academic-judicial nexus across the ideological spectrum. But that is where the Roberts Court has brought us. Don’t get me wrong. I believe deeply in the law, and I believe in the importance of lawyers who are adept in its intricacies and ability to work within it. But today the mystification of formal legal knowledge, embedded in that academic-judicial nexus, is being used to corrupt the democratic and constitutional process. The corruption has been enabled, though not advanced, by liberal members of the legal academy as well. So we need a more disenthralled, realistic view of the role of the legal profession, what it is, and what it has to offer because corrupt forces have used that legal knowledge mystification to steal power from democratic self-government. And democratic self-government, not the gamesmanship of legal professors and judges, is what our system is and must be based on.