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March 13, 2016

STEPHEN CARTER: The Next Supreme Court Justice Shouldn’t Be A Judge:

What difference does background make? Amar is concerned about diversity in several important senses. It’s notorious that every sitting justice attended either Yale or Harvard. But he’s also concerned for a lack of diversity in styles of argument. Those who have spent their careers on the bench tend to think that “judges are more right than they really are.” There are more ways to think about the Constitution than the ways we think about it in the cases. Part of the triumph of Brown v. Board of Education is the richness of its understanding of politics. Amar implies that this is in part because nobody on the Brown court had spent a career in the judiciary. On the other hand, he attributes John Roberts’s vote to uphold the Affordable Care Act in part to the chief justice’s extensive earlier experience in the intricacies of executive-branch policymaking, including four years in the White House counsel’s office.

There’s something very Jacksonian about this argument — and I refer not to Justice Robert Jackson, one of the heroes of Amar’s fine book, but to President Andrew Jackson, who campaigned against both the judiciary and the rule of lawyers. But although Jackson is in bad odor these days, on this point I think the seventh president was mostly right. He worried that judges were becoming an aristocracy in the new nation.

Amar doesn’t go quite so far, but perhaps he should. Both major parties are facing Jacksonian moments, with their bases believing — with reason, I would say — that their views are rarely reflected or even seriously solicited in the making of policy. More and more they see what goes on in the power centers they mistrust (Washington and Wall Street) as an ever-heavier burden of impositions. One needn’t share this opinion to see that it exists.

I note that there’s nothing in the Constitution requiring that Supreme Court justices be lawyers. I believe that in the Reagan Administration they considered appointing Thomas Sowell at one point. A presidential candidate wanting to ride the populist wave might want to announce that he/she would consider non-lawyers for the Court.