A Deal for Dahlia Lithwick

Dahlia Lithwick has written a column with a very odd fundamental claim:

[H]aving covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for women, minorities, and workers. No, the real problem, I think, is that the Court as a whole has gotten too smart for our own good....

The result has been what Professor Akhil Reed Amar of Yale Law School calls the “Judicialization of the Judiciary,” a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel: elite schools beget elite judicial clerkships beget elite federal judgeships. Rinse, repeat. All nine sitting justices attended either Yale or Harvard law schools. (Ginsburg started her studies in Cambridge but graduated from Columbia.) Eight once sat on a federal appellate court; five have done stints as full-time law school professors. There is not a single justice “from the heartland,” as Clarence Thomas has complained....

A Supreme Court built this way is going to have blind spots. But right-wing legal and political groups—who are much better at the confirmation game than their equivalents on the left—have added a final criteria that ensures the Court leans strongly in their favor. They have succeeded in setting the definition of the consummate judge: a humble, objective, nearly mechanical umpire who merely calls “balls and strikes,” in Roberts’s insincere but politically deft phrasing. This lets conservatives sell nominees who are far more conservative than liberal nominees are liberal. A Democratic-appointed justice makes the short list by having her heart in the right place, but will be disqualified for heeding it too much.

Lithwick is hardly the first to observe that the Justices all attended elite law schools or that the Court is "cloistered" by comparison with past Supreme Courts. A majority of the members of the current Court--5--were, as Lithwick notes, for a time professors and deans at such law schools. 

I'll make Lithwick a deal: in about 10 years' time (right about the time where we might, perhaps, be getting some retirements, that is), we'll all--left, right and center--make a concerted effort to get some lawyers "from the heartland" nominated by the President and confirmed by the Senate. Or we'll do that for "war veterans," a category of Justice that Lithwick says she'd like to see on the Court. Or perhaps we'll just do it for lawyers from non-elite schools--solid, strong schools like St. John's University School of Law, with the kind of smart and highly capable lawyers whom I am privileged to teach (including in Constitutional  Law!), and who have rich and rewarding lives in legal practice of various kinds. We could call it "the Progressive Court-Packing Plan" or "the Heart-Is-In-The-Right-Place Plan" or "the Real Life Plan." The cardinal rule of the Real Life Plan Deal is: no graduates of elite law schools; and absolutely, positively, never, ever, ever any law school professors.

Unlike Lithwick, I'm quite unsure just what sort of ideological mix we'd get on the Court by following the Real Life Plan. But I'll take that bet.