Out of Touch, Arrogant Supreme Court

The Atlantic Monthly http://www.theatlantic.com/doc/200509/taylor has a couple of insightful articles this issue on the Supreme Court. One writer contends that the members of the Supreme Court lack any kind of meaningful real world experience and rule from an ivory tower. I was appalled to learn that none of the justices, except Souter, ever served as a trial judge. None of them, except Souter who was briefly a prosecutor, ever held high executive office or served in a legislature. They have never even argued a case of any complexity. Accordingly, they have no appreciation for the real world consequences of their decisions. The selection process is such that nominees with real world experience may have too much of a record and may be targets of the opposition. Only law professors and Circuit Court of Appeals judges can pass scrutiny.

Another writer argues that the justices are, in addition, arrogant and ideologically inconsistent and lazy. He points out that a number of Circuit Court of Appeals judges have begun to express outright public contempt for the Supreme Court. The Supreme Court does not appear to confine itself to deciding the cases before it; rather, the Supreme Court appears to believe that its role is to establish overarching principles that often go beyond the parameters of the cases before them. This, the writer contends, is a function of the lack of accountability.

What steps might be taken to increase accountability and acquaintance with reality? One idea discussed is term limits. Justices might be limited to terms of 18 years such that turnover would be more frequent and selection less fraught with political peril. Nominees with a wider variety of backgrounds might be put forward, and justices would have to interact with a relatively more constant infusion of new blood and new ideas.

Another possibility might be to select justices at random from among current and former Circuit Court of Appeals and state supreme court judges with terms of 6 years followed by a return to the courts from which the justices were recruited. Let them live with their rulings for a little while after their time in Washington.

In any event, these articles are worth the time.