'The Stepford Justices': The Need for Experiential Diversity on the Roberts Court

Abstract:     
For the first time in history every Supreme Court justice has come directly from the same job: judge on the U.S. Court of Appeals. For the first time in history no justice has ever served in a legislature at any level of government. For the first time in history no justice has ever run for political office. For the first time in history seven of the nine justices have graduated from the same three Ivy League law schools.

This narrowness of experience on the Supreme Court is unprecedented. Our current Supreme Court can indeed be called The Stepford Justices.

This article traces this homogeneity to the failure of the Robert Bork nomination in 1987. Since Bork, Presidents have tried to sell their nominees as non-ideological legal technicians. At the same time, justices are actually being selected for the same reason they always have been - the hope that their decisions will reflect the political beliefs of the President and his party.

The result? An ideologically split Court that decided one-third of last Term's cases by 5 to 4 votes.

This article contends that Presidents - and the legal community - must be more honest about the role of ideology in the work of the Supreme Court. It draws from the work of the mathematician Kurt Godel to argue that the nature of the Supreme Court docket leads to decisions that are both true and at the same time unprovable. Technical legal skill is not as important as values and intuition.

The article recommends a return to the policies of presidents such as Roosevelt, Truman, and Eisenhower. While they certainly tried to choose nominees who shared their political beliefs, they nominated not just individuals with judicial experience, but also lawyers who had been Senators, Governors, cabinet members, heads of regulatory agencies, professors, and even private practitioners. This mix of justices with wide legal and governmental experience is vital for the effective functioning of the nation's highest collegial court.

Keywords: justices, Godel, Posner, Fish, Whittaker, Supreme Court, Roberts Court, Bork

Accepted Paper Series