Advancing a Free Society

The Diversification of Supreme Court Justices

Wednesday, March 7, 2012

A recent article in the Washington Post on the composition of the Supreme Court reports on the work  of Professor Benjamin Barton, whose data analysis points out the exceptional composition of the current Court.  As a boy, I grew up in Brooklyn, New York, and thus take some pride in the fact that four of the five boroughs are represented on the Supreme Court -- and still further pride in the fact that Justices Antonin Scalia and Elena Kagan did tours of duty living in Hyde Park and teaching at one of my academic homes, the University of Chicago.

Yet that form of personal pride does not easily segue into sound social policy.  Barton is right to insist that the composition of the Court as a body is not simply a matter of toting up the individual competences of individual Justices.  The synergies from the mix really matter as well.  Barton stresses the similarity of backgrounds, in that all the Justices grew up within the government system, either as lawyers on the appellate courts or operatives in the Justice Department or the White House.  There is an evident want of hybrid vigor that comes when all the Justices have similar backgrounds.

The question is how does this play out when there are evident ideological divergences among the justices? One dimension that I think is important is the direct exposure to private law subjects, which for these purposes I define broadly to include not only contracts, property and torts, but also fields like bankruptcy, securities regulation and taxation, none of which can be understood without a firm grasp of a wide range of business transactions.

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