Tuesday, April 21, 2009

Justice: Are You Experienced?

The Supreme Court at Dawn
Washington, DC (28 April 2015)
© Fabrizio di Piazza 

Ansel Adams had a life-long love affair with Yosemite National Park. A gifted photographer, Adams had a sharp eye, a clear aesthetic and a technical prowess. He sought the right angle, recognized the right time to take the shot and used the right tools to achieve a signature clarity. Large format cameras, prolonged exposure times, endless tinkering with the development process in search of the right print. Among the many photographs Adams took in Yosemite, “Yosemite Valley, Thunderstorm” stands out. Taken from the western edge of Inspiration Point, this is a masterpiece of American photography, its crystalline depiction of El Capitan and the Half Dome—the almost eager trees below and a threatening sky above—capturing nature in what looks like its eternal state of unsullied order.

In a speech at the University of Arizona Rogers College of Law on 4 February 2009, John G. Roberts, Chief Justice of the Supreme Court of the United States, paid tribute to his predecessor, William H. Rehnquist. In his tribute, the Chief Justice remarked that when Justice Rehnquist joined the Court in 1972 (he was elevated to Chief Justice in 1986) a minority of justices had judicial experience. On the current Court, Chief Justice Roberts noted, all of the justices have experience as appellate court judges. As a result, he said, “analysis and argument shifted to more solid grounds of legal arguments.”

In “Roberts Sets Off Debate On Judicial Experience,” Adam Liptak, the Supreme Court correspondent for the New York Times, questioned the wisdom of a court filled with justices having a uniform judicial background. There is no evidence justices with prior judicial training are more apt to follow precedent or avoid political opinion; studies in decision-making show that diversity tends to produce better results than homogeneity.

And so the question arises: What experience should a Supreme Court Justice have? And is prior judicial experience necessary?

It is important to consider that the US Constitution does not answer this question. And, it is only recently, as the process of judicial nominations has become seriously (perhaps dangerously) politicized, that questions of judicial qualifications have intensified. In our history, we have tended to devote our attention to what the judiciary looks like, what kind of power it has and when and how it may exercise that power. The field of debate is tilted away from questions of what makes a good judge and toward institutional questions of judicial independence and the meaning and effect of particular decisions.

In Article III, the US Constitution, in characteristic terseness, establishes the “judicial Power.” Article III establishes a Supreme Court, gives Congress the power to create “inferior Courts,” says judges will serve “during good Behaviour,” briefly enumerates those issues to which the judicial Power extends and defines “treason.” “Good behaviour” is undefined.

Looking beyond Article III isn’t much help. The US Constitution sets few qualifications for the offices it creates and those qualifications relate to the formalities of age, residence and citizenship. The only other qualification to serve office operates negatively: Article VI protects those serving in the federal government, saying that “no religious Test shall ever be required.”

With the Judiciary Act of 1789, Congress acted on its Article III authority. Among other things, the Act sets the number of Supreme Court justices, fleshes out jurisdictional questions and establishes inferior courts. But, it sets no substantive qualification for judges or how judges must decide a case.

The Federalist Papers are among the most important contemporaneous writings on the Constitution. Of the 85 essays making up the Federalist Papers, six (numbers 78 through 83) address directly the Judicial Branch. Federalist 78, a subtle and searching analysis of judicial power, mentions “good Behaviour”; Federalist 79 notes that judicial “inability” is insufficient ground on which a judge might be removed. But for Alexander Hamilton, author of these essays, the important question is not the qualification of judges. The question for Hamilton is institutional and historical: How to preserve the independence (co-equality) of the judiciary.

In its conception, our political system is a triumph of purposeful inefficiency: Self-government of enumerated, separated, limited powers. The Legislature passes bills relating to enumerated issues. The Executive “faithfully execute[s]” the law. The Judiciary decides “Cases [and] Controversies.” The US Constitution limits the power of the branches to meddle with one another. And, each branch resists the imposition of too much order from outside its boundaries.

Sitting atop the mountain of justice in the United States—having to review and issue final judgment on the trees below—must be a curious experience. Like Ansel Adams at Inspiration Point, it is tempting to think there exists a serious impulse to focus what one already sees. It is not just that one has the view or the gift to see the picture. It is that the tools at one’s disposal seem to demand a particular mode of responding. As the camera lens seems to ask for focus, so law seems to ask for order. And, justices with uniform judicial background is a form of legal order.

But, the Chief Justice said nothing about order or prior judicial experience necessitating particular reasoning or results. He noted the re-location of justices and argument in “legal argument.” And, in noting the transition to this “more solid ground,” the Chief Justice may have been after what Alexander Hamilton was after in Federalist 78 and 79: A pragmatic and effective means to maintain the independence of the judiciary. The Chief Justice said as much when he said judicial nominees should respond to increasing politicization of the judicial nomination process by recognizing judges are not a part of the political process, refusing to answer questions about personal views or matters that might appear before the Court (the so-called Ginsburg Rule) and grounding legal opinions in “considered legal analysis.” To put Judicial Branch decision-making solidly on legal ground is to exercise judicial power clearly and thus to preserve that authority and protect the institution of the Court from criticism that its mode of reasoning is better suited to another branch.

At the end of the speech, the Chief Justice was asked about his own legacy. He said he hoped he would be viewed as a “good judge”—“to do your best and move on.” It is always interesting to note when justices speak plainly. Infer from it at your peril.

Still, the Chief Justice’s plain language takes us back to where we started: What experience should a Supreme Court Justice have?

Perhaps the answer is in their title. Justice.

In the seminal 1803 case Marbury v. Madison, John Marshall, the fourth Chief Justice—a judicial Ansel Adams, if simile may extend so far—wrote: “It is emphatically the province and duty of the Judicial [Branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” That first sentence is inscribed in the wall of the Supreme Court building in Washington, DC.