Legal Commentary

A week ago today I posted about how, if Solicitor General Kagan is confirmed, every Justice on the SCOTUS will have attended Harvard or Yale law schools.  In an article in the National Law Journal, I was quoted as saying that I was concerned about diversity of experience on the court, and barriers to entry at these few, elite "feeder" schools.  Christopher Edley has written an op-ed at the Washington Post arguing that what is important is ensuring access to "elite" law schools, so that the pool of highly qualified candidates is diverse.  http://www.washingtonpost.com/wp-dyn/content/article/2010/05/14/AR2010051403641.html.  I agree in large part with Dean Edley.

However, one line of his piece did get me thinking, about an issue that affects academia and legal education as well as Supreme Court appointments.  Edley wrote that the qualities that are important in a Supreme Court Justice are "wisdom and analysis, not personal experiences."  I am not so sure that experience can be so easily divorced from judgment and reason.

True, a big part of a judge's job--particularly a Supreme Court Justice's job--involves abstract logic, and the ability to read and digest huge amounts of printed material; and to write (and edit) clearly and cogently.  But the Supreme Court's role in legal rule-crafting requires Justices to consider the broad legal landscape; the parties' realities; and the good of the nation.

Remember the case involving the strip-search of a 13-year-old girl by school officials?  Safford Unified School District No. 1 v. Redding, 129 S.Ct. 2633 (2009).  Dahlia Lithwick of Slate wrote about the Redding argument (in one of the flat-out funniest pieces of legal writing I have ever read), that the justices just didn't "get it."  http://www.slate.com/id/2216608.  Remember Justice Ginsburg complaining to USA Today of her colleagues, "They have never been a 13-year-old girl"?  http://www.nytimes.com/2009/06/26/us/politics/26scotus.html.  The court ultimately ruled that the child's rights were violated, but Lithwick's coverage of the argument demonstrates some of the dangers of justices' blindspots.

This is not an argument that judges can only "get" what they themselves have experienced, nor is it a defense of identity politics.  But scholars have long debated the importance (and the gendered aspects) of different "ways of knowing."  See Belenky et al. Women's Ways of Knowing.

And as a teacher and student of criminal law, I think that experience may particularly inform judgment and reason in the area of punishment and stigma.  I have learned more about the reality of racial disparity in our criminal justice system in one afternoon at the Philadelphia county jails than in months of reading law review articles and Sentencing Project reports.  Is generalizing from anecdotal experience dangerous and incomplete?  Of course.  But are writing and judging in a vacuum also dangerous?  Heck yeah.  (Given current career paths in academia, I know this is a dangerous point to make on this, the blog of profs, but I think I'll stand by it.)

I agree with Dean Edley that personal experience is not the end-all, be-all of judging.  But I do think that diversity of legal professional experience among the justices is important to a healthy SCOTUS.  Too much is at stake to rely on abstract analysis alone.