“Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law (as well as the church) on his side. Instead, he turned the law inside out and made illegality legal.”
– Historian Alan Bullock
I knew the Supreme Court of the US was weighted heavily in favor of the elite products of high-powered law schools, high-powered federal work experience, and high-powered theories.
But this chart of the make-up of the Supreme Court in recent years at the New York Times (May 2, 2009) was still something of a stunner to me.
One hundred percent of SC justices are former federal judges.
How many now are state judges? Nil.
How many now are private lawyers? Nil.
How many now are elected officials? Nil.
How many now are government lawyers? Nil.
How many now are law professors? Nil.
As Adam Liptak, the SC correspondent at The Times, justifiably complains,
“None of the justices have held elective office. All but one attended law school at Harvard or Yale. And the only three justices in American history who never worked in private practice are on the current court..”
But then Liptak holds up as a model, David Souter, a former attorney-general of the State of New Hampshire.
This, as trial lawyer Norm Pattis points out, is like depending on a sprinter to win a marathon.
“When is the last time a lawyer who made his living from fees earned
representing ordinary working people sat on the Supreme Court?”
But the question could be asked of many more government insitutions.
When was the last time the SEC was staffed with officials from small banks and thrifts?
When was the last time a mayor from a small-town made it to the White House?
We talk about localism a lot. But in practice we’re heavily prejudiced against it.
A small-town resume, we presume, is fit only for small-towns.
There are a lot of reasons for this but I’ll focus on a couple that strike me at once (and I’ve blogged on them recently):
(1) It used to be that education fitted you to exercise judgment. These days we avoid judgment altogether, confusing it with judgmentalism.
In the absence of the ability to judge (and any common standard to judge by), we become victims of public relations and marketing. When no one can agree on substance, image becomes everything.
Brands rule. Harvard and Yale are the best known national brands, so we outfit our justices in them.
(2) Increasing specialization means that fewer people feel capable of pronouncing judgment about something, even if they felt it was permissble to. They look instead to experts to make their choices for them. The media, which has a disproportionate effect on nearly every choice made, tends to focus on experts who come from the same educational and socio-economic background. The circle of the elite thus tends to get smaller and clubbier with every year.