Legal Commentary

Justices? Trial Experience

By Eugene Volokh

Reader Tim Hudson writes:

Other than Justices Sotomayor and Alito (who were both prosecutors) and maybe Ginsburg (with the ACLU), have any other Supreme Court Justices ever tried a case? In addition, has any active Supreme Court Justice ever tried a civil case to a jury?

The federal appellate trend is to draw from biglaw appellate groups, academia, and the S.G.?s office. I think we lose something (especially on procedural and evidence issues) when the members of the appellate courts (including SCOTUS) never have put a file together.

I?m inclined to suspect that the Justices have more trial experience than one might at first think, because we don?t pay much attention to their early careers. Justice Kennedy was a lawyer in California from 1961 to 1975, and I believe was generally in a small practice, so I?m sure he had plenty of civil cases, likely including jury trial cases. Justice Scalia was a lawyer at a big Cleveland firm from 1961 to 1967, so I suspect he had some civil jury trials as well. (My sense is that junior lawyers at big firms had more civil jury trials back then than they do now.)

Moreover, I don?t think that trial experience is necessary for a Justice: Chief Justice Roberts was of course one of the leading appellate lawyers in the nation, which is pretty significant experience even if he had never tried a case (I?m not sure whether he had tried any cases). Likewise, Justices Breyer and Kagan were significant scholars, and Justice Breyer was a very well respected appellate judge; Justice Thomas had significant administrative agency experience, which is pretty relevant to many Supreme Court cases. Nonetheless, I think the reader?s question is interesting, so if readers have any specific data on which Justices have tried criminal cases, civil cases, or in particular civil cases before a jury, I?d love to see it.

Full post as published by The Volokh Conspiracy on October 19, 2010 (boomark / email).