When I started writing this, the Senate had just finished its hearing on the nomination of current-Judge Ketanji Brown Jackson to be an Associate Justice of the Supreme Court of the United States. She has since been confirmed and she will become the first black woman to sit on the Court. Her identity as a black woman was particularly important throughout the nomination process, because Joe Biden promised during his primary race to nominate a black woman if there was an opening on the Court.1For a full accounting of how House Majority Whip James Clyburn of South Carolina convinced Biden to make that campaign promise in exchange for Clyburn’s endorsement, see Jonathan Allen & Amie Parnes, Lucky: How Joe Biden Barely Won the Presidency (2021)
In light of this focus on Jackson’s racial and gender identity, fellow intellectual AH expressed his opinion that he did not care about her “[insert label here]” identity and found “class concerns” more meaningful. When I mentioned Justice Clarence Thomas’s class background, AH responded with 1) a link to an Indian website stating that Justice Thomas’s net worth is $24 million dollars,2I doubt the accuracy of that number. A Center for Public Integrity analysis of the Justices’ 2016 financial disclosures put the minimum net worth of Justice Thomas at $600,000 but noted that his maximum net worth may be over $1 million. The Justices’ annual financial disclosures do not have to include the amount in their Thrift Savings Plan, which is the equivalent to a 401(k) for federal employees. But Thomas’s annual disclosures since 2016 don’t report $20+ million in income 2) a paragraph excerpt of the introduction to Thomas’s Wikipedia page covering his undergraduate education to his appointment as Chairman of the Equal Employment Opportunity Commission, and 3) the statement that “idgaf about any potential bootstraps sob story if theyre ultimately coopted into the oligarchy”. I called this “one of the dumbest SCOTUS-related opinions” he’s ever had.
This blog is meant to expound upon why I called that opinion dumb. Ultimately, I think this simply boils down to an irreconcilable difference of opinion on the nature of class identity. But I think I can help toward a common understanding by shedding some light on how class identity among the ultra-elite legal sphere is still stratified. This blog starts with some background on Supreme Court nominations, my views on the salience of political identity and jurisprudence, and then a discussion of class.
Brief History of Supreme Court Nominee Characteristics
Since George Washington, Presidents have submitted 165 nominations to the Senate for appointment to the Court.3Of those nominations, 128 were confirmed, and 121 of them (116 different people) served. Since the beginning, there have been political considerations on what the “identify” of the nominee is apart from the nominee’s legal qualifications. But which characteristics are politically salient have changed over time.
For much of the Court’s history, geography was the most important identity.4I recognize that in a time where the candidates were all “white men”, it may seem that there is not much else to distinguish on. In the times of a federal republic where people thought of themselves as Virginians or Pennsylvanians instead of Americans, this made sense. From the first Court in 1790 to the appointment of Justice Cardozo in 1932, the seat first held originally by Justice Cushing was always filled with someone from the New England states. New Yorkers had the same seat for nearly 100 75-ish years across five Justices (Justice Livingston in 1807 to Justice Hunt’s forced retirement in 1882). The Court even had a de facto Southern seat from Justice Iredell (NC) in 1790 to the death of Justice Wayne (GA) in 1867, after which the seat was abolished. As far as the importance of Northerner/Midwesterners, I like this biography about Justice Swayne, an Ohioan who was appointed by Lincoln in 1862: “Swayne satisfied Lincoln’s criteria for appointment: commitment to the Union, slavery opponent, geographically correct.” Noah Swayne, Oyez.org.
Geography, and geographic diversity, has clearly played less of a factor in nominations since the Civil War. From the time Justice Kagan took the bench in 2010 until the death of Justice Scalia in 2016, four of the boroughs in New York City were represented on the Court. See, e.g., James Barron, A New York Bloc on the Supreme Court, New York Times (2010-05-11) (Scalia = Queens; Ginsburg = Brooklyn; Sotomayor = Bronx; Kagan = Manhattan). In fact, Justice Scalia commented on the extent the Court’s demographics did not reflect the American public in his dissent in Obergefell:
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
Obergefell v. Hodges, 576 U.S. 644, 717 (Scalia, J., dissenting)
Putting aside for the moment the issue of law school education, Justice Scalia’s dissent addressed another characteristics of nominees which used to be more salient: religion. Except for a two-year overlap of Justices McKenna and Butler, from 1921 to 1986 the Court was limited to one “Catholic seat”. (In 1986, Justice Scalia was the first in run of Catholic appointments). Similarly, four appointments made up a “Jewish seat” in the middle of the 20th century: Fortas replaced Goldberg replaced Frankfurter replaced Cardozo.
As evident by Biden’s campaign promise, today’s salient nominee criteria are sex and race. In 1980, Reagan made a similar campaign promise to appoint the Court’s first woman justice if elected. See, e.g., Lou Cannon, Reagan Pledges He Would Name a Woman to the Supreme Court, Washington Post (1980-10-15) (“‘It is time for a woman to sit among our highest jurists,’ Reagan said in a prepared statement to a news conference . . . . The Republican presidential nominee denied that his statement today was a reaction to criticism of his opposition to the Equal Rights Amendment.”). After the death of Justice Ginsburg, Trump made a promise to fill the vacancy with another woman; he didn’t promise anything about another New Yorker or Jew. See, e.g., Andrea Shalal & Lawrence Hurley, Trump will nominate a woman next week to succeed Ginsburg on Supreme Court, Reuters (2020-09-19). George H.W. Bush had the opportunity to fill the seat vacated by the Court’s first black Justice, and ended up chosing Justice Thomas5who is black, FYI but claimed that he did not feel that he had to have nominated a racial minority. See, e.g., Lyle Denniston & Dan Fesperman, Bush picks black judge for court; Clarence Thomas has served in D.C. 15 months, The Baltimore Sun (1991-07-02). For his part, Justice Marshall did not view race as the most important characteristic:
Asked whether Bush has an obligation to replace him with a minority member, Marshall said: “I don’t think (race) should be used as an excuse one way or the other . . . . I mean for picking the wrong Negro, and saying, ‘I’m picking him because he is a Negro.’ I am opposed to that.”
He added: “There’s no difference between a white snake and black snake. They’ll both bite.”
Karen Tumulty, Marshall Says Bush Should Not Use Race as ‘Excuse’ for Picking Wrong Successor, L.A. Times (1991-06-29)
By race, I don’t just mean black or white. When George W. Bush nominated Miguel Estrada to the Court of Appeals for the D.C. Circuit, interest groups told Democratic senators they viewed the nomination as “dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” ‘He Is Latino’, Wall Street Journal (2003-11-14).
Why did I run through a list of the Supreme Court’s treatment of demographics and dig to find original newspaper articles? I don’t know. First, I want to knock down a strawman (or real talking point from right-wing hot take artists) that it is new that some demographic separate from a nominee’s skill is a consideration for a President. Second, I want to make the point that Presidents for much of the Court’s history have focused on demographics when those demographics/identity characteristics were politically salient. President across parties have maintained the composition of the Court’s geographic, religious, sexual, and racial demographics at key times.
I think only recently, and largely on the Left, has a different theory of the importance of judicial demographics arisen: that it is important for the Court to have a diversity of [x identity] because people of [x identity] bring a different “perspective” which is important (or even that some identities have better opinions than others). This attitude was embodied in an address given by then-Judge Sotomayor which brewed up into a controversy6I leave as a treat for the reader the cover to National Review’s issue on the nomination (Volume LXI, No. 11; 2009-06-22) during her nomination:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
Sonia Sotomayor, A Latina Judge’s Voice, Berkeley Law Raza Law Journal Vol. 13 p.87 (2002)
I feel that AH and I share common ground in largely resisting this conclusion, though for completely different reasons. I will expand on that common ground potential only after a brief aside on the importance of “perspectives” based on professional experience, not demographics.
Aside: The Conventional Importance of Professional Background
[I have yet to read this book, but if you’re interested in more about the cool jobs Supreme Court Justices used to have, this seems like a good place for further reading: Benjamin H. Barton, The Credentialed Court: Inside the Cloistered, Elite World of American Justice (2022-03-08). An excerpt is available from the link below the cover photo]
The experience of Supreme Court justices used to be incredibly varied. I’ve previously discussed Justice Byron White’s remarkable career. In broad strokes, Supreme Court Justices used to be actual lawyers with their own law practices before taking the bench. Many had served as elected politicians after their law practice. It was certainly not necessary for a nominee to have any experience as judge or academic. Now, the resume of Supreme Court nominees are almost interchangeable: went to Harvard or Yale, clerked for a Supreme Court Justice, served time as a cog in a big law firm or the federal government (the biggest law practice), then made it to a practically cloistered position with lifetime job security on a Court of Appeals or in a campus ivory tower.
Much was made by the media and interest groups of Justice Kentaji Jackson’s two-year stint as a federal public defender. See, e.g., Clark Neilly, Confirm Ketanji Brown Jackson, Cato Institute (2022-03-18) (“She would be the first justice who worked as a public defender, and, unlike most of the other Justices, she never served as a prosecutor or other courtroom advocate for government.”). The underlying theory is that a judge’s professional experience prior to judging will influence how they rule in certain cases. At it most simplistic, the theory is that a judge who spent significant time as a prosecutor/biglaw attorney will more likely rule in favor of government/commercial interest due to their “perspective” or bias.
I just want to add a nuance (already covered by Clark Neilly) that “it is impossible to predict how a judge will rule in a given case simply by virtue of his or her prior professional experience,” and that in some cases a judge’s professional background may push them against their former employer. For example, a judge with prosecutorial experience may rule against the government more than others precisely because the judge has higher standards for prosecutorial work or can more easily tell when the prosecution is trying to pull a fast one because they know all the tricks. Professor Will Baude made a similar point about Justice Gorsuch’s recent dissent in United States v. Zubadayah, where Gorsuch would have ruled against the federal Government’s assertion of a state secrets privilege over details of a Gitmo detainee’s torture, even though Gorsuch represented the federal government in 2005 in defense of its Gitmo policies:
Will: Yeah. Well, he doesn’t talk at all, whether that experience informs his views. I kind of wonder if it did.
Dan: I mean, it’s hard to imagine that it didn’t inform them in some way.
Will: [chuckles] Right. You can imagine two versions. You can imagine thinking like, “Those were real state secrets. I was fighting for real estate secrets back then. But at this point this is all just politics.” Or, you could imagine thinking like, “Boy, some of the stuff I did for my clients back then are things that I’m not sure the court should have let us get away with,” [chuckles] which is sort of the Robert Jackson famously had this view in Youngstown, more or less saying, “There are things that I told, that I recommended to the President, as well as Attorney General, but now as a judge think were wrong.” So, I wonder if this is Gorsuch’s Robert Jackson moment.
Will Baude & Dan Epps, Shmoland, Divided Argument (2022-03-12)
Ultimately, I am in favor of a diversity of professional experience on the Supreme Court, and I think it is a good thing that soon-Justice Jackson has some experience as a public defender. That doesn’t mean I can’t complain about stupid charts like this:
Charles C.W. Cooke lambasted this more thoroughly than I ever could, but what the hell is this garbage? Obviously in a way to show that KBJ literally checks every box, the only 5 relevant professional experiences are ones that she has had. What gets my goat in particular though is the that only education boxes are “Public high school” and “Ivy League Law School”. Is it good to come from a public high school background because that shows a nominee isn’t part of some rich boy’s club? If so, how does that not apply to Ivy League law schools, in particular when 2 of them have made up the entire Supreme Court at times? And what happened to undergrad, is there no difference between going to a small liberal arts college and an Ivy League school there? (and if so, which one checks a box)? The only reason to bring up “Public high school” is to put some focus on class. Now I will tell you that I largely do not care about a Justice’s class background.
The (Un)Importance of Race and Class Background, to Me
Or at least, I think a Justice’s race or class background ideally shouldn’t matter to judging, especially at an appellate level. I have an absolutely terrible understanding of legal philosophical camps, but my understanding is that my view of law is considered Dworkinian (because it is in line with Richard Dworkin’s legal theory as fleshed out in Law’s Empire (1986)). I would label my view as a “law-as-puzzle” mindset, but scholars call it the one-right-answer thesis. In brief, every legal dispute has a right answer and an omnipotent judge with infinite time (known as Hercules) could determine it. As some other professor summarized:
Dworkin’s Hercules is a model of a unitary judge, with unlimited access to information about the world, law, and everything else, unlimited capacity to process that data, and unlimited time so that he produces the right answer. If there is a right answer, then the judge deciding does not have discretion: she either gets the right answer or she makes a mistake. Hercules and the right answer thesis have a seductive appeal; it is the sort of appeal that makes people say judges find law, not make law. If the judge does not find the right one then she either makes a mistake or makes it up; there has to be a law for her to find, and that means no more than that there exists a single correct decision.
Michael B.W. Sinclair, Hercules, Omniscience, Omnipotence, and the Right Answer Thesis, NYLS Journal of International and Comparative Law: Vol. 22:1 p.77 (2003)
Of course, judges are not omnipotent. In “hard” cases where countervailing legal principles are at issue, some judge may by virtue of his or her experience be peculiarly attached to a principle that, in a Herculean fashion, would yield. But this is definitely not results-oriented judging, and I can think of no legal principle which is implicitly correlated with a particular demographic characteristic. To put it another way, contra Sotomayor’s wise latina theory, I do not know what a judge’s life experiences have to do with anything. People of all classes, races, sexes, religions, and regions are equally capable to my mind of getting things right analytically and have an equal chance of getting things wrong in the same way.
Dealing with fallible people, I am less comfortable with my Dworkinian model when it comes to a judge determining questions of fact, like a credibility determination during a bench trial. When it comes to a judge picking who to believe, I am willing to entertain some sort of implicit bias theory where a judge—who is trying his or her best to get the right answer—errs on one side because of their experience of demographics. But when deciding a question of law this way, as an appeal court like SCOTUS does, of what relevance is a judge’s class or race background? Every wise person is able to read the briefs, look to the sources of law, and come to the right answer.
Some questions of law look similar to questions of fact that can be clearly influenced by a judge’s background. For example, current Fourth Amendment jurisprudence involves a “reasonable expectations of privacy”, where a judge determines whether a person’s expectation of privacy was “reasonable” based on the expectations of the community. Hercules does not need to refer to his own background to answer the question, but maybe a judge who grew up in a gated community with no interactions with police would have a different view of what is reasonable than a judge who grew up in a housing project, and maybe that causes one of those judges to wrongly determine what the broader community thinks is “reasonable”. But I still don’t find this a good reason to focus on a nominee’s background to the Supreme Court.
For one, the Court is an appellate court that generally does not decide to hear cases just to correct an erroneous application of settled law or deal in nitty-gritty decisions of whether a 14-day delay or a 30-day delay is “reasonable”. And two, my hot take is that every time the Supreme Court has decided that they need to decide something according to public perception, they’re already fucking up. Katz was wrong, the papers-and-effects test is right. “Evolving standards of decency” in Eighth Amendment law is an absolute jurisprudential farce. See, e.g., United States v. Grant (3d Cir. Aug. 16, 2021) (en banc) (Hardiman, J., concurring) (“But that test has two serious problems: its provenance is illegitimate, and its application empowers judges to exercise unbounded discretion.”). The Warren Court was such a mistake. Fuck.
***
Sorry, been struggling to end this section so I kind of blacked out and went on a screed. The point is, reasonable minds clearly differ on whether someone’s racial and class experiences should inform their jurisprudence. But in my conception of what judges—especially Justices—should be doing, it really shouldn’t matter that much.
The Transience of Class for Government Servants
[Another recommendation for a relevant book I haven’t read, this time in particular for AH. Glenn Harlan Reynolds, The Judiciary’s Class War (2018-02-13)]
But if class does matter, I don’t understand why class-conscience person wouldn’t be looking for someone like Justice Thomas. To cover the “potential bootstraps sob story” just briefly, Clarence Thomas was raised by his poor single mother in Pin Point, GA until he was 7, then moved to Savannah to be raised by his grandfather after his mother’s house burned down, studied to be a preacher but was kicked out of his grandfather’s house when he changed his mind, attended Holy Cross then Yale Law School because of each of those school’s affirmative action programs, and even after Yale Law and through his career at the EEOC had severe financial problems (including a foreclosed student loan). The point of this being, Justice Thomas grew up poor. His path from childhood to Yale Law to SCOTUS is incredibly different than, say, resident-DC-ite Justice Kavanaugh.
Perhaps AH is saying that class background of a Justice is not relevant, and the Justice’s current class is. If that is the case, I am confused for several reasons. First, surely Justice Thomas hasn’t forgotten about his entire life and financial struggles since putting on robes at the age of 42. Did those decades stop influencing his reasoning the second he no longer struggled financially and became upper class?
If the answer is any form of “Yes”, then there is a slight practical problem that no Supreme Court Justices can be lower class or middle class. Getting a federal job and benefits with life tenure is an amazing gig. (Oh, and Art. III, § 1’s Compensation Clause provides that a judge’s salary can’t be decreased too, to ensure that the judiciary is independent from the political branches). A Justice could build a substantial nest egg for decades of work alone without considering any of the celebrity that becomes from being one of the nine most important jurists in the country. Basically, you could appoint a filthy commune hippie to the Court tomorrow, and that hippie would be a millionaire by the time MJD finishes his movie director blog series.
Oh speaking of hippies, how about Bernie Sanders? He came from a family of immigrants and lived paycheck-to-paycheck as far as I know. But after 25 years of a federal salary, he bought a third house. That kind of wealth is entirely expected based on math.
So how can one tell that anyone who was formerly poor has been “coopted into the oligarchy?” The only thing I could think of is if the appointee/politician has changed views. I would posit that Bernie hasn’t changed his views—or been “coopted into the oligarchy”—because of that kind of money. I’m unaware of any radical shift of Justice Thomas’s jurisprudence from his appointment to now. J.D. Vance seems like someone formerly lower class who has changed their views since becoming a public figure. But that change was entirely about Vance’s political re-evaluation of Trumpism, which occurred after Vance’s memoir became a bestseller and movie.
One possibility is that the “oligarchy” analysis doesn’t depend on “coopting” or a change of position, but merely a Justice or politician effecting outcomes that don’t benefit the lower class. But whether a Justice’s jurisprudence benefits the lower classes doesn’t depend on a Justice’s background at all (both rich and poor Justice like are allowed to vote for affirmance or reversal), so I am confused why that kind of “consideration” would be mentioned in a discussion of identity politics.
But then again, identity politics is dumb. Any discussion about it, including this blog, is just a fruit of that stupid tree.
Notes
- 1For a full accounting of how House Majority Whip James Clyburn of South Carolina convinced Biden to make that campaign promise in exchange for Clyburn’s endorsement, see Jonathan Allen & Amie Parnes, Lucky: How Joe Biden Barely Won the Presidency (2021)
- 2I doubt the accuracy of that number. A Center for Public Integrity analysis of the Justices’ 2016 financial disclosures put the minimum net worth of Justice Thomas at $600,000 but noted that his maximum net worth may be over $1 million. The Justices’ annual financial disclosures do not have to include the amount in their Thrift Savings Plan, which is the equivalent to a 401(k) for federal employees. But Thomas’s annual disclosures since 2016 don’t report $20+ million in income
- 3Of those nominations, 128 were confirmed, and 121 of them (116 different people) served.
- 4I recognize that in a time where the candidates were all “white men”, it may seem that there is not much else to distinguish on.
- 5who is black, FYI
- 6I leave as a treat for the reader the cover to National Review’s issue on the nomination (Volume LXI, No. 11; 2009-06-22)