There is virtually no dispute among elite voices in the law – of the political left or right – that the courts that adjudicate best are those that adjudicate the least number of questions necessary to resolve a dispute. Consider the call of leftist Professor Mark Tushnet to take power away from the courts, to the endorsement of judicial minimalism by the philosophically bloodtype-O Professor Cass Sunstein, to the disingenuous statement by Chief Justice Roberts during his confirmation hearings that judges should function merely as umpires. In that context, Linda Greenhouse reports the surprising news that Chief Justice Roberts now acknowledges this credo as something less than a universal normative good.
Following are comments made by the Chief to judges at the conference of the Fourth Circuit Court of Appeals about the possible shortcomings of having all but one of the Supreme Court’s Justices come from prior service as a federal appellate court judge.
[Circuit Court Judge J. Harvie Wilkinsons III] ask[ed] Chief Justice Roberts what difference it makes to have so many former judges on the court (“technocrats,” was the word the judge used at one point) as opposed to the statesmen and political leaders of the past. For example, as the audience well knew, Chief Justice Earl Warren, never a judge, was a political figure who loomed large in the country at the time of his appointment, a three-term governor of California and a vice-presidential candidate on a national Republican ticket.
Chief Justice Roberts’ response to Judge Wilkinson’s question was perhaps more than the questioner or the audience expected. It was nuanced and complex, unusually reflective – perhaps unintentionally so — from someone who typically reveals little of himself in his off-the-bench appearances. I will quote his comments here in full…
“That has to have some impact on how the court looks at its work, and I just don’t know yet whether it’s a positive one or not. If you think the job of the Supreme Court really is trying to apply law to particular cases, maybe it makes sense to have a court of judges.
“If you view it more in terms of playing a political role – not in a partisan politics sense, but as part of the political process, maybe the way a constitutional court in the European countries does – well, then maybe it makes sense to have people who’ve been active in the political realms, either in the executive branch or in the legislative branch. It has to be saying something about the role of the court in terms of what the makeup is.
“You see it in the arguments as well. We have a very good bar. They present legal arguments. If you go back and look at briefs that were filed in the Warren Court era, they sweep more broadly. They paint with a broader brush in terms of social policy concerns. It reflected the audience they were in front of.
“People can and should debate whether or not that’s a good development. I think one consequence of it – it’s probably a good development if you have a particular sense of what types of issues should be presented to the Supreme Court, but a different sense of whether it’s good or bad if you think particular different types of issues should be before the Supreme Court.
“So I think it’s all interrelated: the nature of the legal arguments, the background of the justices, the types of issues that are being presented. It is, I think, a very interesting development that people need to think about.
“If you’ve been a president, if you’ve been a governor, if you’ve been a senator, you have a particular way of looking at issues and matters of public policy. If you’ve been a judge on a court of appeals, it seems to me you have a very different way of looking at it.
“So you have to decide what types of questions you think the court should be deciding, and if they call for people who have one way of looking at public policy as opposed to people – you said ‘technocrats,’ not the right word – a more focused way of drilling in on the law. And maybe you think there’s a mismatch between the kind of question the court’s being asked to decide and the type of personnel that have to decide it.
“And you can obviously resolve that tension one way or another. But I do think it’s not simply a coincidence or a happenstance that you have a court that looks so different than what it looked like in the past.”…
I think the chief justice is saying that there’s a disconnect between what people seem to want from the Supreme Court – answers to the country’s most profound questions – and what the current crop of justices has been trained and selected for – namely, delivering small-bore answers. If you want something more from us, I hear him as implying, then maybe we’re not the justices for you.