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POLITICS MAY 15, 2009

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When President Obama announced Supreme Court Justice Souter’s decision to retire, he said he would prefer a candidate who understands that justice “is also about how our laws affect the daily realities of people's lives.” This is not the description of most law professors that I know (and I know quite a few). Nor is this the description of anyone who has spent their entire career as a lawyer or judge. In fact, the type of person who is most likely to have this kind of first-hand experience is an elected official--an effective and dedicated politician.

The nine members of the current U.S. Supreme Court range in age, ideology, and partisan affiliation. But there is one characteristic they all share--none has ever served as an elected official at the state or national level. This trend may well continue: Of the candidates on what is quickly becoming a consensus short-list for potential Obama appointees, nearly all are either law professors or judges.

While the instinct in choosing a justice for the highest court in the land is to find the most qualified judge or legal scholar, there is a powerful case to be made that the court very much needs an experienced elected official among its ranks. Someone with the appropriate legal experience who also has faced voters and listened to constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the American political system, its institutions, and how they actually work, on the ground, in the 21st century.

A politician’s experience would be useful for a court that must interpret and apply our 18th-century Constitution when deciding cases that directly relate to politicians today. Such situations include deciding whether Congress has delegated away its essential powers; weighing claims about inherent, unitary, prerogative executive power; and considering the constitutionality of well-intended but potentially disastrous legislative innovations such as line-item vetoes, term limits, automated budgeting provisions, and blank-check military authorizations.

Many of these innovations can appear quite compelling, and a credible constitutional argument can be offered in the course of formal litigation for each. But in reality, they may well wind up generating unforeseen consequences that do real violence to the constitution’s structural foundations, its institutions, and their relations to each other. Think how different each of these innovations would appear to a life-long judge or academic than they would to someone who has served as an elected official. And think how much the legal scholar, lawyer, or judge would benefit from some exposure to those insights.

Legislative innovations are not the only place a seasoned elected official might help. A great deal of the court’s most important business today involves the process of democracy itself--elections, voting, and campaigns. It makes sense that we might want to have at least one solid legal mind on the High Court who has run for office, who has actually asked people for campaign contributions, who has been forced to think about the implications of saying no to a powerful lobbyist.

Campaign finance is one area where political experience would be particularly useful for a justice. In the wake of the Watergate scandal, Congress assembled a complex set of laws governing campaign fundraising and expenditures. Rather than reject or approve this package of laws, however, the court pulled them apart in Buckley v. Valeo, ruling that some were constitutional and others were not. Far from removing the taint of corruption from American politics, these laws and their interpretations by the courts have only made the problem of campaign finance more complex and less transparent. It should be noted that at the time this ruling was made, not one justice then sitting on the Supreme Court had ever served as anyone’s elected representative.

Voting rights also remain a hot topic for the Supreme Court. Just last month, the court heard oral argument in the case of Northwest Austin Municipal Utility District v. Holder--a case testing the continuing application of the voting rules initially put into place by the Voting Rights Act of 1965. The ruling in this case will profoundly affect the course of electoral politics in the United States, and yet not one justice on the court last month had the benefit of the insights that could be gained from personal experience operating under these laws. The justices are also increasingly being called to mediate electoral battles--Bush v. Gore and Coleman v. Franken come immediately to mind--in which on-the-ground experience would be helpful.

But beyond bringing their experience actually working under the Constitution to their case decisions, a politician-turned-justice would be a welcome addition to a court that is today desperately in need of someone with genuine political skills. For the past 20 years, the court has been rather dramatically split, with four fairly reliable votes at each end of the ideological spectrum and one justice in the middle (Sandra Day O’Connor until she retired, and now Anthony Kennedy). And if that hasn’t been bad enough, the court has also developed a taste for dividing and re-dividing--with four joining in one part of an opinion, but not another, generating confusing “concurrences-in-part” and “dissents-in-part.”

This fragmentation is a real problem, not only for those like me who try to teach these cases to others, but for those who try to actually implement them, build upon them, or revise laws to work with them. What does such a case mean? What message is the court attempting to send? What should earnest legislators and administrative officials do in the wake of such opinions? And where is the incentive to abide the decision, and not simply ignore or work around it?

One of the most important things the court does is to give reasons for its decisions--not simply decreeing which side wins and loses, but also explaining why. In doing so, they fortify their own authority and legitimacy with the public, as well as send signals to the lower courts whose bewildered federal district judges must apply and enforce the Supreme Court’s often fractured opinions.

A skilled politician might be able to strike bargains, negotiate, strong-arm, and broker deals that could force a stable 5-4 majority. A really good politician might be able to push that up to 6-3, or even unanimity on a particularly good day. The court today generates far fewer unanimous opinions than it has in the past. Probably not coincidentally, the heydays of unanimity on the court were under Chief Justice John Marshall (former member of the Virginia House of Burgesses, and member of Congress from Virginia) and Chief Justice William Howard Taft (who had served in what he considered the lesser position of president before being elevated to the Supreme Court).

Chief Justice Earl Warren--who came to the court after service as the governor of California--is a particularly poignant example: He insisted that a way be found to make sure that there were no dissents to the court’s decision in Brown v. Board of Education. Governor Warren understood the politics of segregation from his time in state government, and knew that the court’s authority and power was at its highest when the court spoke with one voice. Not only were there no dissents in Brown--the court was able to resist divisive dissents in school segregation cases from Brown until the early 1970s. What happened in the early 1970s? Among a number of other factors, Earl Warren was replaced as chief justice by Warren Burger, whose professional experience was strictly as a lawyer and judge.

Putting a skillful politician on the court is not, of course, without its risks. Bargaining, negotiation, and compromise are the grease that makes politics work, but they are not necessarily virtues when you are considering cases involving the most fundamental questions of government power and individual rights. Similarly, court opinions that split-the-difference and can win a coalition amongst divided judges are not typically opinions with much shelf-life. The greatest court opinions are those that stake out articulate, powerful arguments about fundamental issues: Giving lectures about the opinions of Sandra Day O’Connor (who was a skilled legislator in Arizona before joining the Supreme Court) is not nearly as fun as it is to work though the best of Antonin Scalia (judge and law professor), Oliver Wendell Holmes (judge), Louis Brandeis (attorney), and Benjamin Cardozo (judge).

Elective office should not be a requirement for everyone who sits on the Supreme Court. But having at least one justice with this in their background might well help Obama achieve what he says is his goal of finding someone who shares his respect for the constitutional values “on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.”

Gordon Silverstein is an assistant professor of political science at the University of California, Berkeley. His latest book, Law’s Allure: How Law Shapes, Constrains, Saves and Kills Politics, was published by Cambridge University Press in February.

By Gordon Silverstein

The New Republic

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